Common use of Availability of Funds; Financing Clause in Contracts

Availability of Funds; Financing. (a) Parent has delivered to the Company true and complete fully executed copies of the Term Facilities Agreement, dated as of October 2, 2010, between Parent and BNP Paribas, X.X. Xxxxxx PLC and Société Générale Corporate & Investment Banking, including all exhibits, schedules, annexes and amendments to such in effect as of the date of this Agreement (the “Facilities Agreement”), pursuant to which and subject to the terms and conditions thereof each of the parties thereto (other than Parent) have severally agreed to lend the amounts set forth therein (the provision of such funds as set forth therein, the “Financing”) for the purposes set forth in such Facilities Agreement. The Facilities Agreement has not been amended, restated or otherwise modified or waived prior to the date of this Agreement, and the respective commitments contained in the Facilities Agreement have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement. As of the date of this Agreement, the Facilities Agreement is in full force and effect and constitutes the legal, valid and binding obligation of each of Parent and, to the knowledge of Parent, the other parties thereto. There are no conditions precedent or contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Facilities Agreement in the form so delivered to the Company. Subject to the terms and conditions of the Facilities Agreement, the net proceeds contemplated from the Financing, together with other financial resources of Parent and Purchaser, including cash on hand, will, in the aggregate, through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing, be sufficient to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, and there is no restriction on the use of such cash for such purpose. (b) As of the date of this Agreement, (i) no event has occurred which would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a default), in each case, on the part of Parent under the Facilities Agreement or, to the knowledge of Parent, any other party to the Facilities Agreement, and (ii) subject to the satisfaction of the Offer Conditions and the conditions contained in ARTICLE VII hereof, Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing or any other funds necessary to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, will not be available to Parent and Purchaser through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing. Parent has fully paid all fees required to be paid prior to the date of this Agreement pursuant to the Facilities Agreement, and Parent will pay when due all other fees arising under the Facilities Agreement as and when they become payable.

Availability of Funds; Financing. (a) Parent’s and Sub’s obligations hereunder are not subject to a condition regarding Parent’s or Sub’s obtaining of funds to consummate the Offer and the Merger and the other transactions contemplated hereby. Parent has delivered to the Company true true, complete and complete correct copies of a fully executed copies commitment letter, together with the related fee letters (solely in the case of the Term Facilities Agreementfee letters, dated as with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of October 2proceeds available under, 2010the Debt Financing contained therein redacted), between Parent and BNP Paribas, X.X. Xxxxxx PLC and Société Générale Corporate & Investment Banking, including all exhibits, schedules, annexes and amendments to such each in effect as of the date of this Agreement from the Financing Sources parties thereto (together, as they may be amended, modified or replaced in accordance with Section 7.13 and together with all annexes, exhibits, schedules and other attachments thereto, the “Facilities AgreementDebt Commitment Letter”), pursuant ) to which provide debt financing in an aggregate amount set forth therein and subject to the terms and conditions thereof each of the parties thereto (other than Parent) have severally agreed to lend the amounts set forth therein (the provision of such funds being collectively referred to as set forth therein, the “Debt Financing”). As of the date hereof, (i) for the purposes set forth in such Facilities Agreement. The Facilities Agreement Debt Commitment Letter has not been amendedamended or modified in any manner, restated and (ii) to the Knowledge of Parent, no amendment or otherwise modified modification of the Debt Commitment Letter is contemplated (except for any amendment or waived modification to add lenders, lead arrangers, bookrunners, syndication agents or similar entities). As of the date hereof, (i) the Debt Commitment Letter, including the commitments contained therein has not been terminated, reduced, withdrawn or rescinded in any respect and, (ii) to the Knowledge of Parent, no such termination, reduction, withdrawal or rescission is contemplated. Parent has paid in full any and all commitment fees or other fees and amounts in connection with the Debt Commitment Letter that are payable on or prior to the date of this Agreement, Agreement and satisfied all of the respective commitments contained in the Facilities Agreement have not been withdrawn, modified or rescinded in any respect prior other terms and conditions required to be satisfied by Parent as of the date of this Agreementhereof. As of the date of this Agreementhereof, the Facilities Agreement Debt Commitment Letter is in full force and effect and constitutes is the legalvalid, valid binding and binding enforceable obligation of each of Parent and, to the knowledge Knowledge of Parent, the other parties thereto, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally and except that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. There are no conditions precedent or other contingencies (other than pursuant to any “market flex” provisions set forth therein) related to the funding of the full amount (or any portion) of the Debt Financing, other than as expressly set forth in the Facilities Agreement Debt Commitment Letter. Assuming the Debt Financing is funded in accordance with the form so delivered Debt Commitment Letter and the accuracy of the representations and warranties set forth in Article V and performance by the Company of its obligations under this Agreement, in each case, to the Company. Subject extent necessary to satisfy the terms conditions set forth in Section 8.1 and conditions of the Facilities AgreementAnnex A, the net cash proceeds contemplated from by the FinancingDebt Commitment Letter, together with other financial resources of Parent and Purchaser, including available cash on handhand of the Parent, Sub and the Company, will, in the aggregate, through be sufficient for Parent and Sub to pay all of the expiration cash amounts required to be provided by Parent and Sub for the consummation of the transactions contemplated by this Agreement, including the amounts payable in connection with the consummation of the Offer and at the Acceptance TimeMerger, Effective Time and the Closing, be sufficient to pay all amounts to be paid by Parent related fees and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts expenses required to be paid pursuant to ARTICLE III, to consummate as of the date of the consummation of the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, and there is no restriction on the use of such cash for such purpose. (b) . As of the date hereof, except as set forth in the Debt Commitment Letter, there are no side letters, understandings or other agreements, contracts or arrangements of this Agreementany kind relating to the Debt Commitment Letter or the Debt Financing contemplated therein that could reasonably be expected to affect the availability of the Debt Financing contemplated by the Debt Commitment Letter. As of the date hereof, (i) no event has occurred which would constitute a breach (with or default (or an event which with notice or without notice, lapse of time or both both) would, or would reasonably be expected to, constitute a default), in each case, on the part of default or breach or failure to satisfy a condition by Parent under the Facilities Agreement or, to the knowledge Knowledge of Parent, any other party to thereto, under the Facilities Agreement, terms and (ii) subject to the satisfaction conditions of the Offer Conditions and Debt Commitment Letter and, assuming the conditions contained set forth in ARTICLE VII hereofSection 8.1(a) and Annex A are satisfied at Closing, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied by Parent prior to the Acceptance Time or that the full amount of the Debt Financing or any other funds necessary to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, will not be available to Parent and Purchaser through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing. Parent has fully paid all fees required to be paid prior to on the date of this Agreement pursuant to the Facilities Agreement, and Parent will pay when due all other fees arising under the Facilities Agreement as and when they become payableClosing.

Availability of Funds; Financing. (a) Assuming that the Financing is funded and the accuracy of the representations and warranties set forth in Section 5.2 and the performance by the Company of its obligations under Section 7.2(a)(i), the proceeds contemplated to be provided by the Financing Commitments are sufficient to make the payments for the aggregate Merger Consideration, Option Consideration and RSU Consideration contemplated by this Agreement, plus all associated costs and expenses as well as any repayments of Indebtedness of the Company and its Subsidiaries contemplated by this Agreement or the Financing Commitments. (b) Parent has delivered and Merger Sub have provided to the Company a true and complete fully copy of (i) an executed copies of the Term Facilities Agreementcommitment letter, dated as of October 2the date hereof, from the Guarantor (the “Equity Commitment Letter”) pursuant to which Guarantor has agreed to provide Parent and Merger Sub with equity financing in an aggregate amount of up to $220,000,000 plus an amount sufficient to provide proceeds equal to any original issue discount or additional upfront fees required to be paid under the fee letter, dated November 24, 2010, between relating to and defined in the Debt Commitment Letter) (together, the “Equity Financing”), and (ii) an executed commitment letter from the Financing Sources as set forth in Section 6.6 of the Parent Disclosure Letter (the “Debt Commitment Letter,” and together with the Equity Commitment Letter, as may be modified pursuant to Section 7.14, the “Financing Commitments”) pursuant to which, and subject to the terms and conditions thereof, the Financing Sources have committed to provide Parent and BNP ParibasMerger Sub with financing in an aggregate amount of $393,000,000 (the “Debt Financing”, X.X. Xxxxxx PLC and Société Générale Corporate & Investment Bankingtogether with the Equity Financing being collectively referred to as the “Financing”). (c) None of the Financing Commitments has been amended or modified, including all exhibits, schedules, annexes prior to the date hereof (except as permitted by this Agreement) and amendments to such the respective obligations and commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect. The Financing Commitments are in full force and effect as of the date of this Agreement (the “Facilities Agreement”), pursuant to which and subject to the terms and conditions thereof each of the parties thereto (other than Parent) have severally agreed to lend the amounts set forth therein (the provision of such funds as set forth therein, the “Financing”) for the purposes set forth in such Facilities Agreement. The Facilities Agreement has not been amended, restated or otherwise modified or waived prior to the date of this Agreement, and the respective commitments contained in the Facilities Agreement have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement. As of the date of this Agreement, the Facilities Agreement is in full force and effect and constitutes Financing Commitments are the legal, valid and binding obligation of each obligations of Parent and Merger Sub, as applicable, and, to the knowledge Knowledge of Parent, each of the other parties thereto. The Financing Commitments are enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable and, to the Knowledge of Parent, each of the other parties thereto. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Facilities Agreement in the form so delivered to the Company. Subject to the terms and conditions of the Facilities Agreement, the net proceeds contemplated from the Financing, together with other financial resources of Parent and Purchaser, including cash on hand, will, in the aggregate, through the expiration of the Offer and at the Acceptance Time, Effective Time Financing Commitments and the Closing, be sufficient to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, and there is no restriction on the use of such cash for such purpose. (b) fee letters. As of the date of this Agreement, (iassuming the accuracy of the representations and warranties set forth in Article V such that the condition set forth in Section 8.3(a) is satisfied, no event has occurred which would constitute a breach or default (circumstance exists which, with or an event which with notice or without notice, lapse of time or both both, would or would reasonably be expected to constitute a default), in each case, default or breach on the part of Parent under the Facilities Agreement oror Merger Sub, as applicable, or to the knowledge Knowledge of Parent, any other party to parties thereto, under the Facilities Financing Commitments. Assuming the accuracy of the representations and warranties set forth in Article V such that the condition set forth in Section 8.3(a) is satisfied and the performance by the Company of its obligations under this Agreement, and (ii) subject Parent has no reason to the satisfaction believe, as of the Offer Conditions and the conditions contained in ARTICLE VII hereofdate of this Agreement, Parent does not have any reason to believe that any of the conditions to the Financing contemplated in the Financing Commitments will not be satisfied or that the Financing or any other funds necessary to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, will not be made available to Parent and Purchaser through Merger Sub at or prior to the expiration Effective Time. Except for fee letters with respect to fees and related arrangements with respect to the Debt Financing and an engagement letter, of the Offer and at the Acceptance Time, Effective Time and the Closing. which Parent has fully paid all fees required delivered a true, correct and complete copy to be paid the Company on or prior to the date of this Agreement (with only fee information and amounts and certain economic terms relating to market flex (none of which would adversely affect the amount or availability of the Debt Financing, except to the extent additional interest or fees are in the form of original issue discount; provided, however, that such additional interest or fees shall not reduce the Financing Commitments such that they would not be sufficient to make the payments contemplated by Section 6.6(a) of this Agreement) having been redacted), as of the date of this Agreement, there are no side letters or other agreements, Contracts or arrangements related to the funding or investing, as applicable, of the full amount of the Financing other than as expressly set forth in the Financing Commitments and delivered to the Company prior to the date hereof. Parent and Merger Sub have fully paid, or caused to be fully paid, any and all commitment or other fees which are due and payable on or prior to the date hereof pursuant to the Facilities Agreement, and Parent will pay when due all other fees arising under terms of the Facilities Agreement as and when they become payableFinancing Commitments.

Availability of Funds; Financing. (a) Assuming (i) the Debt Financing is funded in accordance with the Debt Commitment Letter and (ii) the accuracy of the representations and warranties set forth in Section 3.03 and compliance in all material respects with Section 5.01(b)(ii) and Section 5.01(b)(iv), Parent will have available to it at the Closing sufficient unrestricted cash or other sources of immediately available funds in U.S. dollars to consummate the transactions contemplated hereby, including the Merger, and to enable Parent to satisfy all of its obligations under this Agreement, including the payment of the Merger Consideration. (b) Concurrently with the execution of this Agreement, each Sponsor has executed their respective Equity Commitment Agreement. The Equity Commitment Agreements are in full force and effect, are a valid, binding and enforceable obligation of such Sponsor. The Equity Commitment Agreements are not subject to any conditions or other contractual contingencies other than as expressly set forth therein. Parent has delivered to the Company true true, correct, complete and complete fully executed copies of (i) the Term Facilities Agreementcommitment letter, dated as of October 2, 2010, between Parent and BNP Paribas, X.X. Xxxxxx PLC and Société Générale Corporate & Investment Banking, including the date hereof (together with all exhibits, schedules, annexes annexes, amendments and amendments to such in effect joinders related thereto, the “Debt Commitment Letter”), among Parent, Sumitomo Mitsui Banking Corporation and MUFG Bank, Ltd., (ii) the fee letter, dated as of the date of this Agreement hereof (together with all exhibits, schedules, annexes, amendments and joinders related thereto, the “Facilities AgreementFee Letter” and, together with the Debt Commitment Letter, the “Debt Letters”), among Parent, Sumitomo Mitsui Banking Corporation and MUFG Bank, Ltd. (provided that such Fee Letter may be redacted solely as to fee amounts and other economic terms (including any such terms included in the “market flex”) that are customarily redacted in connection with similar financings and that could not adversely affect the conditionality, enforceability, amount, availability or termination of the Financing), pursuant to which and subject to the terms and conditions thereof expressly set forth therein, each of the parties Debt Financing Entities party thereto (other than Parent) have has severally agreed committed to lend provide debt financing in the amounts set forth therein (in the provision of such funds as Debt Commitment Letter to Parent for the purposes expressly set forth thereinin the Debt Commitment Letter (such debt financing, the “Debt Financing” and, together with the Equity Financing, the “Financing”) for and (iii) the purposes set forth in such Facilities Equity Commitment Agreements. As of the date of this Agreement. The Facilities Agreement has not , none of the Financing Commitment Letters have been amended, restated or otherwise modified or waived prior to the date of this Agreementin any respect, and the respective commitments contained in the Facilities Agreement have not been withdrawnno such amendment, modified restatement, modification or rescinded in any respect prior to the date of this Agreementwaiver is contemplated. As of the date of this Agreement, none of the Facilities Agreement commitments contained in any Financing Commitment Letter has been terminated, withdrawn, rescinded, reduced or otherwise modified in any respect. To the Knowledge of Parent, no such termination, withdrawal, rescission, reduction or modification is contemplated. As of the date of this Agreement, each of the Financing Commitment Letters is in full force and effect and constitutes the legal, valid valid, binding and binding enforceable obligation of each of Parent and, to the knowledge Parent’s Knowledge, each of Parent, the other parties thereto, subject in each case to the Bankruptcy and Equity Exceptions. There are no conditions precedent or contingencies directly or indirectly related to the funding of the full amount of the Financing, other than as expressly set forth in the Facilities Agreement in the form so delivered to the CompanyFinancing Commitment Letters. Subject to the terms and conditions of the Facilities AgreementFinancing Commitment Letters and a refinancing in full of the 2025 Notes prior to the Closing that expressly permits all transactions contemplated by this Agreement (including the Financing), the net proceeds contemplated from of the Financing, Financing (together with other financial resources sources of immediately available funds) will provide Parent and Purchaser, including cash on hand, will, in the aggregate, through the expiration of the Offer and Merger Sub with sufficient funds at the Acceptance Time, Effective Time and the Closing, be sufficient Closing to pay all amounts to be paid by Parent and Purchaser in connection with of their respective obligations under this Agreement and to consummate each of the transactions contemplated herebyFinancing Commitment Letters, including amounts necessary to accept for the payment of the Merger Consideration, the payoff amount and pay for all fees then-due and expenses payable by Parent, Merger Sub or any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid of their respective Affiliates in connection with the MergerFinancing (such amounts, and there is no restriction on collectively, the use of such cash for such purpose. (b) “Required Amount”). As of the date of this Agreement, (i) assuming the accuracy of the representations and warranties of the Company herein and the satisfaction or waiver of the conditions to Closing set forth in Section 7.01 and Section 7.03, no event has occurred which which, with or without notice, lapse of time or both, constitutes, or would, or would constitute reasonably be expected to, constitute, a breach or default (under the Financing Commitment Letters, constitute, a breach, default or an event which with notice failure to satisfy a condition under the Financing Commitment Letters by or lapse of time or both would constitute a default), in each case, on the part of Parent under the Facilities Agreement or, to the knowledge of Parent’s Knowledge, any other party to the Facilities Financing Commitment Letters. As of the date of this Agreement, there are no side letters or other agreements, Contracts, arrangements or understandings of any kind (written or oral) related to the Financing or any of the Financing Commitment Letters that could affect the conditionality, enforceability, amount provided under the Financing Commitment Letters, availability or termination of the Financing other than as expressly set forth in the Financing Commitment Letters. Parent has fully paid all commitment fees and (ii) subject other fees required to be paid on or prior to the date of this Agreement in connection with the Financing. As of the date of this Agreement, assuming the satisfaction of the Offer Conditions conditions set forth in Section 7.01 and the conditions contained in ARTICLE VII hereofSection 7.03, Parent does not have any reason to believe that it or any of the parties to the Financing Commitment Letters will be unable to satisfy on a timely basis any of the conditions to the Financing contemplated by the Financing Commitment Letters required to be satisfied by it, that the conditions thereof will not otherwise be satisfied at or prior to the Closing or that the Financing or any other funds necessary to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, will not be made available to Parent and Purchaser through in accordance with the expiration terms of the Offer and Financing Commitment Letters at the Acceptance Time, Effective Time and or prior to the Closing. Parent has fully paid all fees required to be paid prior to As of the date of this Agreement pursuant to the Facilities Agreement, and no Person that is a party to any of the Financing Commitment Letters has notified Parent will pay when due all other fees arising (or any of its Affiliates or Representatives) of its intention to terminate, withdraw, rescind, reduce or modify any of its obligations under any of the Facilities Agreement as and when they become payableFinancing Commitment Letters or to not provide the Financing.

Availability of Funds; Financing. (a) Parent As of the Closing Date and subject to the consummation of the Purchaser Financing (as defined below), Purchaser will have available all funds necessary to (i) pay the Purchase Price, (ii) consummate the other transactions contemplated by the Financing Commitment, (iii) pay any and all fees and expenses in connection with the transactions contemplated by this Agreement and the Transition Services Agreement and the Purchaser Financing (as defined below) and (iv) satisfy all of its other payment obligations payable hereunder. Purchaser’s obligations under this Agreement are not subject to any condition regarding Purchaser’s ability to obtain or maintain financing for the consummation of the transactions contemplated by this Agreement and the Transition Services Agreement. (b) Purchaser has delivered to the Company true Seller a true, complete and complete fully executed copies correct copy of the Term Facilities Agreementexecuted commitment letter (the “Financing Commitment”), dated as of October 2, 2010, between Parent and BNP Paribas, X.X. Xxxxxx PLC and Société Générale Corporate & Investment Banking, including all exhibits, schedules, annexes and amendments to such in effect as of the date of this Agreement (hereof, among Purchaser and the “Facilities Agreement”)Commitment Parties, pursuant to which and the lenders (the “Lenders”) party thereto have committed, subject to the terms and conditions thereof each of the parties thereto (other than Parent) have severally agreed thereof, to lend the debt amounts set forth therein (the provision of such funds as set forth therein, the “Purchaser Financing”). (c) for the purposes set forth in such Facilities Agreement. The Facilities Agreement has not been amended, restated or otherwise modified or waived prior to the date of this Agreement, and the respective commitments contained in the Facilities Agreement have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement. As of the date of this Agreement, the Facilities Agreement Financing Commitment is in full force and effect and constitutes the (i) a legal, valid and binding obligation of each of Parent Purchaser and, to the knowledge of ParentPurchaser, each of the other parties thereto and (ii) enforceable in accordance with its terms against Purchaser, and, to the knowledge of Purchaser, each of the other parties thereto. The Financing Commitment has not been amended or modified, except as consistent with Section 7.19, and as of the date hereof the respective obligations and commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. As of the date hereof, to the Knowledge of Purchaser in the case of the other parties thereto, the Financing Commitment is in full force and effect. (d) There are no conditions precedent or other contingencies related to the funding of the full amount of the Purchaser Financing, other than as set forth in or contemplated by the Financing Commitment. As of the date hereof, no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a default or breach on the part of Purchaser and to the knowledge of Purchaser, any other parties thereto, under the Financing Commitment or (ii) constitute or result in a failure to satisfy any condition precedent set forth in the Financing Commitment. (e) Other than a fee letter relating to fees with respect to the Purchaser Financing (a complete copy of which has been provided to Seller, with fee amounts, economic terms of the “Market Flex Provisions” in such fee letter, and other economic provisions not adversely affecting the conditionality, enforceability, availability, termination or aggregate principal amount of the Purchaser Financing redacted), there are no side letters or other agreements, contracts or arrangements related to the funding or investing, as applicable, of the full amount of the Purchaser Financing other than as expressly set forth in the Facilities Agreement in the form so Financing Commitment and delivered to the Company. Subject Seller prior to the terms and conditions of the Facilities Agreement, the net proceeds contemplated from the Financing, together with other financial resources of Parent and Purchaser, including cash on hand, will, in the aggregate, through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing, be sufficient to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, and there is no restriction on the use of such cash for such purpose. (b) date hereof. As of the date hereof, Purchaser has fully paid, or caused to be fully paid, any and all commitment or other fees which are due and payable with respect to the Financing Commitment. As of this Agreementthe date hereof, (i) no event has occurred which assuming the accuracy of the representations and warranties contained in Article 4 and Article 5 in a manner that would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a defaultsatisfy the conditions set forth in Section 8.2(a), in each case, on the part of Parent under the Facilities Agreement or, to the knowledge of Parent, any other party to the Facilities Agreement, and (ii) subject to the satisfaction of the Offer Conditions and the conditions contained in ARTICLE VII hereof, Parent does not have any Purchaser has no reason to believe that any of the conditions to the Purchaser Financing contemplated by the Financing Commitment will not be satisfied or that the Purchaser Financing or any other funds necessary to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, will not be made available to Parent and Purchaser through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing. Parent has fully paid all fees required to be paid on or prior to the date of this Agreement pursuant to the Facilities Agreement, and Parent will pay when due all other fees arising under the Facilities Agreement as and when they become payableClosing Date.

Availability of Funds; Financing. (a) Parent’s and Sub’s obligations hereunder are not subject to a condition regarding Parent’s or Sub’s obtaining of funds to consummate the Merger and the other transactions contemplated hereby. Parent and/or Sub will have available to it sufficient funds to pay the Merger Consideration and any other amounts required to be paid by Parent and Sub in connection with the consummation of the Merger on the Closing Date and the other transactions contemplated hereby, including all related fees and expenses. Parent has delivered to the Company true true, complete and complete correct copies of a fully executed copies commitment letter, together with the related fee letter (solely in the case of the Term Facilities Agreementfee letter, dated as with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of October 2proceeds available under, 2010the Debt Financing contained therein redacted), between Parent and BNP Paribas, X.X. Xxxxxx PLC and Société Générale Corporate & Investment Banking, including all exhibits, schedules, annexes and amendments to such each in effect as of the date of this Agreement from Barclays Bank PLC (together, as they may be amended, modified or replaced in accordance with Section 6.13 and together with all annexes, exhibits, schedules and other attachments thereto the “Facilities AgreementDebt Commitment Letter”), pursuant ) to which provide debt financing in an aggregate amount set forth therein and subject to the terms and conditions thereof each of the parties thereto (other than Parent) have severally agreed to lend the amounts set forth therein (the provision of such funds being collectively referred to as set forth therein, the “Debt Financing”) for the purposes set forth in such Facilities Agreement. The Facilities Agreement has not been amended, restated or otherwise modified or waived prior to the date of this Agreement, and the respective commitments contained in the Facilities Agreement have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement). As of the date of this Agreement, the Facilities Agreement Debt Commitment Letter has not been amended or modified in any manner, and, as of the date of this Agreement, to the Knowledge of Parent, no amendment or modification of the Debt Commitment Letter is contemplated. The Debt Commitment Letter, including the commitments contained therein, has not been terminated, reduced, withdrawn or rescinded in any respect and, to the Knowledge of Parent, no such termination, reduction, withdrawal or rescission is contemplated. Parent has paid in full any and all commitment fees or other fees and amounts in connection with the Debt Commitment Letter that are payable on or prior to the date of this Agreement, and, as of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes is the legalvalid, valid binding and binding enforceable obligation of each of Parent and, to the knowledge Knowledge of Parent, the other parties thereto, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws now or hereinafter in effect, affecting creditors’ rights and remedies generally, and to general principles of equity. There are no conditions precedent or other contingencies related to the funding of the full amount (or any portion) of the Debt Financing, other than as expressly set forth in the Facilities Agreement in the form so delivered to the CompanyDebt Commitment Letter. Subject to the terms and conditions Section 6.13(c), as of the Facilities date of this Agreement, the net proceeds contemplated from the Financingthere are no side letters, together with understandings or other financial resources agreements or contracts of Parent and Purchaser, including cash on hand, willany kind, in each case to which Parent is a party, relating to the aggregate, through Debt Financing that could affect the expiration availability of the Offer and at Debt Financing contemplated by the Acceptance TimeDebt Commitment Letter, Effective Time and other than as expressly set forth in the Closing, be sufficient to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, and there is no restriction on the use of such cash for such purpose. (b) Debt Commitment Letter. As of the date of this Agreement, (i) no event has occurred which would constitute a breach (with or default (or an event which with notice or without notice, lapse of time or both both) would constitute a default), in each case, on the part of default or breach or failure to satisfy a condition by Parent under the Facilities Agreement or, to the knowledge Knowledge of Parent, any other party to thereto, under the Facilities Agreementterms and conditions of the Debt Commitment Letter, and (ii) subject to the satisfaction of the Offer Conditions and assuming the conditions contained set forth in ARTICLE VII hereofSection 7.1 and Section 7.3 are satisfied at Closing and assuming the performance by the Company of its obligations under Section 6.13, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied by Parent prior to the Closing Date or that the Debt Financing or any other funds necessary to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, will not be available to Parent and Purchaser through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing. Parent has fully paid all fees required to be paid prior to on the date of this Agreement pursuant to the Facilities Agreement, and Parent will pay when due all other fees arising under the Facilities Agreement as and when they become payableClosing.

Availability of Funds; Financing. (a) Parent’s and Sub’s obligations hereunder are not subject to a condition regarding Parent’s or Sub’s obtaining of funds to consummate the Merger and the other transactions contemplated hereby. Parent and/or Sub will have available to it sufficient funds to pay the Merger Consideration and any other amounts required to be paid by Parent and Sub in connection with the consummation of the Merger on the Closing Date and the other transactions contemplated hereby, including all related fees and expenses. Parent has delivered to the Company true true, complete and complete correct copies of a fully executed copies commitment letter, together with the related fee letter (solely in the case of the Term Facilities Agreementfee letter, dated as with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of October 2proceeds available under, 2010the Debt Financing contained therein redacted), between Parent and BNP Paribas, X.X. Xxxxxx PLC and Société Générale Corporate & Investment Banking, including all exhibits, schedules, annexes and amendments to such each in effect as of the date of this Amended and Restated Merger Agreement from Barclays Bank PLC, Bank of America, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Citigroup Global Markets Inc. (together, as they may be amended, modified or replaced in accordance with Section 6.13 and together with all annexes, exhibits, schedules and other attachments thereto the “Facilities AgreementDebt Commitment Letter”), pursuant ) to which provide debt financing in an aggregate amount set forth therein and subject to the terms and conditions thereof each of the parties thereto (other than Parent) have severally agreed to lend the amounts set forth therein (the provision of such funds being collectively referred to as set forth therein, the “Debt Financing”) for the purposes set forth in such Facilities Agreement. The Facilities Agreement has not been amended, restated or otherwise modified or waived prior to the date of this Agreement, and the respective commitments contained in the Facilities Agreement have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement). As of the date of this Agreement, the Facilities Agreement Debt Commitment Letter has not been amended or modified in any manner, and, as of the date of this Agreement, to the Knowledge of Parent, no amendment or modification of the Debt Commitment Letter is contemplated. The Debt Commitment Letter, including the commitments contained therein, has not been terminated, reduced, withdrawn or rescinded in any respect and, to the Knowledge of Parent, no such termination, reduction, withdrawal or rescission is contemplated. Parent has paid in full any and all commitment fees or other fees and amounts in connection with the Debt Commitment Letter that are payable on or prior to the date of this Agreement, and, as of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes is the legalvalid, valid binding and binding enforceable obligation of each of Parent and, to the knowledge Knowledge of Parent, the other parties thereto, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws now or hereinafter in effect, affecting creditors’ rights and remedies generally, and to general principles of equity. There are no conditions precedent or other contingencies related to the funding of the full amount (or any portion) of the Debt Financing, other than as expressly set forth in the Facilities Agreement in the form so delivered to the CompanyDebt Commitment Letter. Subject to the terms and conditions Section 6.13(c), as of the Facilities date of this Agreement, the net proceeds contemplated from the Financingthere are no side letters, together with understandings or other financial resources agreements or contracts of Parent and Purchaser, including cash on hand, willany kind, in each case to which Parent is a party, relating to the aggregate, through Debt Financing that could affect the expiration availability of the Offer and at Debt Financing contemplated by the Acceptance TimeDebt Commitment Letter, Effective Time and other than as expressly set forth in the Closing, be sufficient to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, and there is no restriction on the use of such cash for such purpose. (b) Debt Commitment Letter. As of the date of this Agreement, (i) no event has occurred which would constitute a breach (with or default (or an event which with notice or without notice, lapse of time or both both) would constitute a default), in each case, on the part of default or breach or failure to satisfy a condition by Parent under the Facilities Agreement or, to the knowledge Knowledge of Parent, any other party to thereto, under the Facilities Agreementterms and conditions of the Debt Commitment Letter, and (ii) subject to the satisfaction of the Offer Conditions and assuming the conditions contained set forth in ARTICLE VII hereofSection 7.1 and Section 7.3 are satisfied at Closing and assuming the performance by the Company of its obligations under Section 6.13, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied by Parent prior to the Closing Date or that the Debt Financing or any other funds necessary to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, will not be available to Parent and Purchaser through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing. Parent has fully paid all fees required to be paid prior to on the date of this Agreement pursuant to the Facilities Agreement, and Parent will pay when due all other fees arising under the Facilities Agreement as and when they become payableClosing.

Availability of Funds; Financing. (a) Parent Assuming the funding of the Debt Financing, the Purchaser has sufficient cash available to enable it to pay the full Closing Purchase Price and to make the other payments earned, due and payable in connection with the Contemplated Transactions required to be paid by the Purchaser under this Agreement, in each case, at the Closing hereunder, and to make any payments required to be paid by the Purchaser resulting from the Post-Closing Adjustment in accordance with Section 2.5 (b) The Purchaser has delivered to the Company Seller a true and complete fully executed copies copy of (x) the Term Facilities Agreement, Commitment Letter dated as of October 2, 2010, between Parent and BNP Paribas, X.X. Xxxxxx PLC and Société Générale Corporate & Investment Banking, including all exhibits, schedules, annexes and amendments to such in effect as of the date hereof from Deutsche Bank AG New York Branch and Royal Bank of this Agreement Canada (collectively, the “Lenders”) (the “Facilities AgreementDebt Commitment Letter”)) (including any related fee letters with only fee amounts and percentages, pricing caps, market flex and securities demand provisions and other economic, numerical or commercially sensitive terms redacted) to the Purchaser pursuant to which and subject the Lenders have committed to provide the terms and conditions thereof each of Purchaser with financing for the parties thereto (other than Parent) have severally agreed to lend the amounts Contemplated Transactions in an aggregate amount set forth therein (the provision of such funds as set forth therein, the “Debt Financing”) for (the purposes set forth in such Facilities entire amount of which will be available under clause (x) of the definition of “Incremental Amount” under (and as defined in) the Credit Agreement) and (y) the Credit Agreement. The Facilities Agreement has not been amendedAssuming due authorization, restated or otherwise modified or waived prior execution and delivery by each other Person party thereto (which, to the date of this AgreementPurchaser’s Knowledge, and is the respective commitments contained in the Facilities Agreement have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement. As of the date of this Agreementcase), the Facilities Agreement Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of each of Parent andthe Purchaser, and to the knowledge of ParentPurchaser’s Knowledge, the other parties thereto, subject, as to enforceability, to (a) Laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (b) rules of Law governing specific performance, injunctive relief or other equitable remedies. There are no conditions precedent side letters or contingencies other Contracts to which the Purchaser or any of its Affiliates is a party related to the funding of the full amount of the Debt Financing, and there are no conditions or contingencies to the availability of the Debt Financing or the obligations of the Financing Sources party to the Debt Commitment Letter to fund the Debt Financing, in each case other than (a) as expressly set forth in the Debt Commitment Letter, (b) which does not expand the conditions precedent to the funding of the full amount of the Debt Financing or reduce the aggregate amount of the Debt Financing, in each case other than as expressly set forth in the Facilities Debt Commitment Letter, (c) as expressly set forth in Sections 2.14(d) and 4.02 of the Credit Agreement or (d) as expressly set forth in Section 7.02(i) of the Credit Agreement. Satisfaction of the Exclusive Funding Conditions (as defined in the form so delivered Debt Commitment Letter) and the requirements of Section 7.02(i) of the Credit Agreement will satisfy the conditions precedent to Sections 2.14(d) and 4.02 of the Credit Agreement without further act by any Person. There is no requirement under Section 7.02(i) of the Credit Agreement that is required under the Credit Agreement to be satisfied prior to the CompanyClosing Date other than the absence of any “Event of Default” under (and as defined in) the Credit Agreement, after giving pro forma effect to the Contemplated Transactions, and no such “Event of Default” is continuing as of the date hereof or will result from the Contemplated Transactions (including by reason of any cross-default or similar provision). Subject None of the provisions redacted in the fee letter will limit, prevent, impede or delay the consummation of the Debt Financing in any manner. As of the date hereof, the Purchaser has fully paid any and all commitment fees required by the Debt Commitment Letter to be paid as of the date hereof, and other than as set forth in the Debt Commitment Letter and related fee letter, no commitment or other fees will be required to be paid by the Purchaser in respect of the Debt Financing at any time prior to the Closing Date. The Purchaser is not required under any Material Debt Document to comply with any financial covenant on or after the date hereof and on or prior to the Effective Time or to comply with any financial covenant or financial ratio to consummate the Contemplated Transactions. The Purchaser acknowledges and agrees that its obligation to consummate the Contemplated Transactions is not subject to the availability of the Debt Financing on the Closing Date. As of the date hereof, no event has occurred that, with or without notice or lapse of time or both, would constitute a breach, default or failure of a condition to the Debt Financing by the Purchaser or, to the Purchaser’s Knowledge, any other parties to the Debt Commitment Letter under the terms and conditions of the Facilities Agreement, the net proceeds contemplated from the Financing, together with other financial resources of Parent and Purchaser, including cash on hand, will, in the aggregate, through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing, be sufficient to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, and there is no restriction on the use of such cash for such purposeDebt Commitment Letter. (b) As of the date of this Agreement, (i) no event has occurred which would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a default), in each case, on the part of Parent under the Facilities Agreement or, to the knowledge of Parent, any other party to the Facilities Agreement, and (ii) subject to the satisfaction of the Offer Conditions and the conditions contained in ARTICLE VII hereof, Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing or any other funds necessary to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, will not be available to Parent and Purchaser through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing. Parent has fully paid all fees required to be paid prior to the date of this Agreement pursuant to the Facilities Agreement, and Parent will pay when due all other fees arising under the Facilities Agreement as and when they become payable.

Availability of Funds; Financing. (a) Parent has delivered and Merger Sub have provided to the Company a true and complete copy of the fully executed copies of the Term Facilities Agreementequity commitment letter, dated as of October 2the date hereof, 2010, between Parent and BNP Paribas, X.X. Xxxxxx PLC and Société Générale Corporate & Investment Banking, including all exhibits, schedules, annexes and amendments to such in effect as of the date of this Agreement Equity Investor (such letter, the “Facilities AgreementEquity Commitment”), pursuant to which and subject the Equity Investor has committed to invest the amount set forth therein on the terms and conditions thereof each of the parties thereto (other than Parent) have severally agreed to lend the amounts set forth therein (the provision of such funds “Equity Funding”). The Equity Commitment has not been amended or modified and the commitment contained in the Equity Commitment has not been withdrawn or rescinded in any respect (except as permitted by the Equity Commitment). Subject to the terms, conditions and exceptions set forth therein, the “Financing”) for the purposes set forth in such Facilities Agreement. The Facilities Agreement has not been amended, restated or otherwise modified or waived prior to the date of this Agreement, and the respective commitments contained in the Facilities Agreement have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement. As of the date of this Agreement, the Facilities Agreement Equity Commitment is in full force and effect and constitutes the legal, valid and binding obligation obligations of each of Parent andParent, Merger Sub and the Equity Investor, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights generally, and (ii) is subject to general principles of equity. No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the knowledge part of Parent, Merger Sub or the other parties theretoEquity Investor under any term or condition of the Equity Commitment. There are no conditions precedent or contingencies related to the funding investing of the full amount of the FinancingEquity Funding, other than as expressly set forth the satisfaction of the conditions precedent to Parent’s and Merger Sub’s obligations hereunder. Assuming the satisfaction of the conditions precedent to Parent’s and Merger Sub’s obligations hereunder, Parent and Merger Sub have no reason to believe that the Equity Funding will not be made available to Parent and Merger Sub on the Closing Date. The net proceeds contemplated by the Equity Commitment will, together with cash and cash equivalents available to Parent, in the Facilities Agreement aggregate be sufficient to consummate the Merger and the other transactions contemplated hereby (including payment of the aggregate Merger Consideration and payment of Parent and Merger Sub’s transaction costs and expenses) upon and in the form so delivered to the Company. Subject to accordance with the terms and conditions of the Facilities Agreement, the net proceeds contemplated from the Financing, together with other financial resources of Parent and Purchaser, including cash on hand, will, in the aggregate, through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing, be sufficient to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, and there is no restriction on the use of such cash for such purpose. (b) As of the date of this Agreement, (i) no event has occurred which would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a default), in each case, on the part of Parent under the Facilities Agreement or, to the knowledge of Parent, any other party to the Facilities Agreement, and (ii) subject to the satisfaction of the Offer Conditions and the conditions contained in ARTICLE VII hereof, Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing or any other funds necessary to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, will not be available to Parent and Purchaser through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing. Parent has fully paid all fees required to be paid prior to the date of this Agreement pursuant to the Facilities Agreement, and Parent will pay when due all other fees arising under the Facilities Agreement as and when they become payable.

Availability of Funds; Financing. Parent’s and Sub’s obligations hereunder are not subject to a condition regarding Parent’s or Sub’s obtaining of funds to consummate the Offer and the Merger and the other transactions contemplated hereby. Assuming the Debt Financing is funded in accordance with the Debt Commitment Letter, the accuracy of the representations and warranties set forth in Article V to the extent necessary to satisfy the conditions set forth in clause (av)(c) of Annex A, Parent and/or Sub will have available to it sufficient funds to pay the Cash Consideration and any other amounts required to be paid by Parent and Sub in connection with the consummation of the Offer and the Merger at the Acceptance Time and on the Closing Date and the other transactions contemplated hereby, including all related fees and expenses. Parent has delivered to the Company true true, complete and complete correct copies of a fully executed copies commitment letter, together with the related fee letter (solely in the case of the Term Facilities Agreementfee letter, dated as with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of October 2proceeds available under, 2010the Debt Financing contained therein redacted), between Parent and BNP Paribas, X.X. Xxxxxx PLC and Société Générale Corporate & Investment Banking, including all exhibits, schedules, annexes and amendments to such each in effect as of the date of this Agreement from Xxxxxx Xxxxxxx Senior Funding, Inc. (together, as they may be amended, modified or replaced in accordance with Section 7.12 and together with all annexes, exhibits, schedules and other attachments thereto the “Facilities AgreementDebt Commitment Letter”), pursuant ) to which provide debt financing in an aggregate amount set forth therein and subject to the terms and conditions thereof each of the parties thereto (other than Parent) have severally agreed to lend the amounts set forth therein (the provision of such funds being collectively referred to as set forth therein, the “Debt Financing”) for the purposes set forth in such Facilities Agreement. The Facilities Agreement has not been amended, restated or otherwise modified or waived prior to the date of this Agreement, and the respective commitments contained in the Facilities Agreement have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement). As of the date of this Agreement, the Facilities Agreement Debt Commitment Letter has not been amended or modified in any manner, and, as of the date of this Agreement, to the Knowledge of Parent, no amendment or modification of the Debt Commitment Letter is contemplated. The Debt Commitment Letter, including the commitments contained therein, has not been terminated, reduced, withdrawn or rescinded in any respect and, to the Knowledge of Parent, no such termination, reduction, withdrawal or rescission is contemplated. Parent has paid in full any and all commitment fees or other fees and amounts in connection with the Debt Commitment Letter that are payable on or prior to the date of this Agreement, and, as of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes is the legalvalid, valid binding and binding enforceable obligation of each of Parent and, to the knowledge Knowledge of Parent, the other parties thereto, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws now or hereinafter in effect, affecting creditors’ rights and remedies generally, and to general principles of equity. There are no conditions precedent or other contingencies related to the funding of the full amount (or any portion) of the Debt Financing, other than as expressly set forth in the Facilities Agreement in the form so delivered to the CompanyDebt Commitment Letter. Subject to the terms and conditions Section 7.12(c), as of the Facilities date of this Agreement, the net proceeds contemplated from the Financingthere are no side letters, together with understandings or other financial resources agreements or contracts of Parent and Purchaser, including cash on hand, willany kind, in each case to which Parent is a party, relating to the aggregate, through Debt Financing that could affect the expiration availability of the Offer and at Debt Financing contemplated by the Acceptance TimeDebt Commitment Letter, Effective Time and other than as expressly set forth in the Closing, be sufficient to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, and there is no restriction on the use of such cash for such purpose. (b) Debt Commitment Letter. As of the date of this Agreement, (i) no event has occurred which would constitute a breach (with or default (or an event which with notice or without notice, lapse of time or both both) would constitute a default), in each case, on the part of default or breach or failure to satisfy a condition by Parent under the Facilities Agreement or, to the knowledge Knowledge of Parent, any other party to thereto, under the Facilities Agreementterms and conditions of the Debt Commitment Letter, and (ii) subject to the satisfaction of the Offer Conditions and assuming the conditions contained set forth in ARTICLE VII hereofSection 8.1 and Annex A are satisfied at Closing and assuming the performance by the Company of its obligations under Section 7.12, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied by Parent prior to the Acceptance Time or that the Debt Financing or any other funds necessary to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, will not be available to Parent and Purchaser through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing. Parent has fully paid all fees required to be paid prior to the date of this Agreement pursuant to the Facilities Agreement, and Parent will pay when due all other fees arising under the Facilities Agreement as and when they become payableon Closing Date.

Availability of Funds; Financing. (a) Parent The Debt Financing Commitments provide Purchaser with financial commitments that, when funded at Closing, together with cash held by the Purchaser, provide it with sufficient funds to pay the Closing Day Payment, to provide the funds required to be provided by Purchaser pursuant to Section 5.7(a) and to pay any other amounts required to be paid by it in connection with the consummation of the transactions contemplated by this Agreement, including all related fees and expenses. (b) Prior to the date hereof, Purchaser has delivered to the Company Seller a true and complete fully executed copies copy of the Term Facilities Agreementcommitment letter, dated as of October 2, 2010, between Parent and BNP Paribas, X.X. Xxxxxx PLC and Société Générale Corporate & Investment Banking, including all exhibits, schedules, annexes and amendments to such in effect as of the date of this Agreement Agreement, among Purchaser, Bank of America N.A. and Credit Suisse N.A. (the “Facilities AgreementDebt Financing Commitment”), pursuant to which and subject to the terms and conditions thereof each of the parties lenders party thereto (other than Parent) have severally agreed committed to lend the amounts set forth therein (the provision of such funds as set forth therein, the “Financing”) for the purposes set forth in such Facilities Agreementof financing the transactions contemplated by this Agreement and related fees and expenses (the “Debt Financing”). The Facilities Agreement has not been amended, restated or otherwise modified or waived prior Prior to the date hereof, none of this Agreementthe Debt Financing Commitments has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in the Facilities Agreement Debt Financing Commitments have not been withdrawn, modified withdrawn or rescinded in any respect respect. Purchaser has fully paid any and all commitment fees or other fees in connection with the Debt Financing Commitments that are payable on or prior to the date execution of this Agreement. As of the date of this Agreementhereof, the Facilities Agreement is Debt Financing Commitments are in full force and effect and constitutes are the legal, valid and binding obligation obligations of each of Parent Purchaser and, to the knowledge Purchaser’s Knowledge, each of Parent, the other parties thereto, subject to the Bankruptcy and Equity Exceptions. There Except for the payment of customary fees, there are no conditions precedent or other contingencies related to the funding of the full amount of the Debt Financing, other than as expressly set forth in the Facilities Agreement in the form so delivered to the CompanyDebt Financing Commitments. Subject to the terms and conditions of the Facilities Agreement, the net proceeds contemplated from the Financing, together with other financial resources of Parent and Purchaser, including cash on hand, will, in the aggregate, through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing, be sufficient to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, and there is no restriction on the use of such cash for such purpose. (b) As of the date of this Agreementhereof, (i) no event has occurred which would constitute a breach that, with or default (or an event which with notice or without notice, lapse of time or both both, would constitute a default), in each case, default on the part of Parent Purchaser under the Facilities Agreement or, to the knowledge of Parent, any other party to the Facilities Agreement, and (ii) subject to the satisfaction of the Offer Conditions and Debt Financing Commitments. As of the conditions contained in ARTICLE VII date hereof, Parent does not have any Purchaser has no reason to believe that any of the conditions to the Debt Financing contemplated by the Debt Financing Commitments will not be satisfied or that the Debt Financing or any other funds necessary to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, will not be made available to Purchaser on the Closing Date. The Debt Financing Commitments (including engagement and fee letters entered into in connection therewith, copies of which, redacted as to fee amounts, have been provided to Parent and Purchaser through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing. Parent has fully paid all fees required to be paid prior to the date of this Agreement pursuant hereof) constitute the entire and complete agreements between the parties thereto with respect to the Facilities Agreement, and Parent will pay when due all other fees arising under the Facilities Agreement as and when they become payableDebt Financing.

Availability of Funds; Financing. As of the Closing Date, Parent shall have available to it sufficient funds to enable it to pay the Closing Cash Merger Consideration (aas adjusted pursuant to Section 3.8) and all other amounts to be paid or repaid by Parent under this Agreement (whether payable on or after the Closing) and all of Parent’s and its Affiliates’ fees and expenses associated with the transactions contemplated by this Agreement in accordance with the terms hereof. Concurrently with the execution of this Agreement, Parent has delivered to the Company true and complete fully executed copies of the Term Facilities Agreementfully executed (a) debt commitment letter from Bank of America, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., Barclays Bank PLC and Xxxxxx Xxxxxxx Senior Funding, Inc. (collectively, the “Lenders”), dated as of October 2the date hereof, 2010, between Parent and BNP Paribas, X.X. Xxxxxx PLC and Société Générale Corporate & Investment Banking, (including all exhibits, schedules, annexes and amendments thereto) and together with any Fee Letter associated therewith (provided, that provisions in the Fee Letter related to such in effect as fees, “flex” terms and other economic or commercially sensitive terms have been redacted (none of which redacted provisions would reasonably be expected to adversely affect the conditionality, availability or aggregate amount of the date of this Agreement debt financing contemplated thereby)) (collectively, the “Facilities AgreementCommitment Letter”), pursuant to which which, and subject to the terms and conditions thereof each of thereof, the parties thereto (other than Parent) Lenders have severally agreed committed to lend the amounts set forth therein to Parent or one of its Subsidiaries for the purpose of funding the transactions contemplated by this Agreement (the provision of such funds debt financing contemplated thereby, hereafter and as set forth thereinamended or replaced from time to time in compliance with Section 6.6, the “Financing”) for the purposes set forth in such Facilities Agreement. The Facilities Agreement has not been amended, restated or otherwise modified or waived prior to the date of this Agreement, and the respective commitments contained in the Facilities Agreement have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement). As of the date of this Agreementhereof, the Facilities Agreement Commitment Letter, in the form so delivered, is in full force and effect in accordance with the terms thereof and constitutes is the legal, valid and binding obligation of each of Parent and, to the knowledge of Parent, the other parties thereto. There are no conditions precedent or contingencies related , subject to the funding effect of the full amount of the Financingany applicable Laws relating to bankruptcy, other than reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as expressly set forth in the Facilities Agreement in the form so delivered to enforceability, to the Companyeffect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Subject to the terms and conditions of the Facilities Agreement, the net proceeds contemplated from the Financing, together with other financial resources of Parent and Purchaser, including cash on hand, will, in the aggregate, through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing, be sufficient to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, and there is no restriction on the use of such cash for such purpose. (b) As of the date of this Agreement, (i) to the knowledge of Parent, no event such commitment has occurred which would constitute a breach been withdrawn, terminated, repudiated, rescinded, amended, supplemented or default (or an event which with notice or lapse of time or both would constitute a default)modified, in each caseany respect, on and no such withdrawal, termination, repudiation, rescission, amendment, supplement or modification is contemplated. As of the part date of this Agreement, neither Parent under the Facilities Agreement ornor, to the knowledge of Parent, any other party counterparty thereto has committed any breach of any of its covenants or other obligations set forth in, or is in default under, the Commitment Letter, and, as of the date of this Agreement, to the Facilities Agreementknowledge of Parent no event has occurred or circumstance exists that, and with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute or result in a breach or default on the part of any Person under the Commitment Letter, (ii) subject constitute or result in a failure to the satisfaction satisfy any of the Offer Conditions terms or conditions set forth in the Commitment Letter, (iii) make any of the assumptions or any of the statements set forth in the Commitment Letter inaccurate in any material respect or (iv) otherwise result in any portion of the Financing not being available. As of the date of this Agreement, assuming satisfaction or waiver of the conditions set forth in Section 7.1 and Section 7.2 and the conditions contained compliance in ARTICLE VII hereofall material respects by the Company with Section 6.6, Parent does not have any has no reason to believe (both before and after giving effect to any “flex” provisions contained in the Commitment Letter) that it will be unable to satisfy, on a timely basis, any term or condition to be satisfied by it contained in the Commitment Letter or that the full amounts committed pursuant to the Commitment Letter will not be available as of the Closing if the terms or conditions to be satisfied by it contained in the Commitment Letter are satisfied. There are no conditions precedent or other conditions related to the Financing will not other than the terms thereof set forth in the Commitment Letter. As of the date of this Agreement, Parent has fully paid, or has caused to be satisfied fully paid, any and all commitment fees or that other fees or deposits required by the Commitment Letter to be paid on or before the date of this Agreement. The aggregate proceeds from the Financing or any other constitute all of the financing required for the consummation of the transactions contemplated by this Agreement and, together with cash on hand, are sufficient in amount to provide Parent with the funds necessary for it to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including for Parent to pay the aggregate amounts payable pursuant to Article II and the payment of all amounts fees, costs and expenses to be paid by Parent and Purchaser in connection with this Agreement and related to consummate the transactions contemplated herebyby this Agreement, including amounts necessary to accept for payment such fees, costs and pay for any Shares pursuant expenses relating to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, will not be available to Parent and Purchaser through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing. Parent has fully paid all fees required to be paid prior to the date of this Agreement pursuant to the Facilities Agreement, and Parent will pay when due all other fees arising under the Facilities Agreement as and when they become payableFinancing.

Availability of Funds; Financing. Parent’s and Sub’s obligations hereunder are not subject to a condition regarding Parent’s or Sub’s obtaining of funds to consummate the Offer and the Merger and the other transactions contemplated hereby. Assuming the Debt Financing is funded in accordance with the Debt Commitment Letter, the accuracy of the representations and warranties set forth in Article V to the extent necessary to satisfy the conditions set forth in clause (av)(c) of Annex A, Parent and/or Sub will have available to it sufficient funds to pay the Cash Consideration and any other amounts required to be paid by Parent and Sub in connection with the consummation of the Offer and the Merger at the Acceptance Time and on the Closing Date and the other transactions contemplated hereby, including all related fees and expenses. Parent has delivered to the Company true true, complete and complete correct copies of a fully executed copies commitment letter, together with the related fee letter (solely in the case of the Term Facilities Agreementfee letter, dated as with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of October 2proceeds available under, 2010the Debt Financing contained therein redacted), between Parent and BNP Paribas, X.X. Xxxxxx PLC and Société Générale Corporate & Investment Banking, including all exhibits, schedules, annexes and amendments to such each in effect as of the date of this Agreement from Mxxxxx Sxxxxxx Senior Funding, Inc. (together, as they may be amended, modified or replaced in accordance with Section 7.12 and together with all annexes, exhibits, schedules and other attachments thereto the “Facilities AgreementDebt Commitment Letter”), pursuant ) to which provide debt financing in an aggregate amount set forth therein and subject to the terms and conditions thereof each of the parties thereto (other than Parent) have severally agreed to lend the amounts set forth therein (the provision of such funds being collectively referred to as set forth therein, the “Debt Financing”) for the purposes set forth in such Facilities Agreement. The Facilities Agreement has not been amended, restated or otherwise modified or waived prior to the date of this Agreement, and the respective commitments contained in the Facilities Agreement have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement). As of the date of this Agreement, the Facilities Agreement Debt Commitment Letter has not been amended or modified in any manner, and, as of the date of this Agreement, to the Knowledge of Parent, no amendment or modification of the Debt Commitment Letter is contemplated. The Debt Commitment Letter, including the commitments contained therein, has not been terminated, reduced, withdrawn or rescinded in any respect and, to the Knowledge of Parent, no such termination, reduction, withdrawal or rescission is contemplated. Parent has paid in full any and all commitment fees or other fees and amounts in connection with the Debt Commitment Letter that are payable on or prior to the date of this Agreement, and, as of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes is the legalvalid, valid binding and binding enforceable obligation of each of Parent and, to the knowledge Knowledge of Parent, the other parties thereto, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws now or hereinafter in effect, affecting creditors’ rights and remedies generally, and to general principles of equity. There are no conditions precedent or other contingencies related to the funding of the full amount (or any portion) of the Debt Financing, other than as expressly set forth in the Facilities Agreement in the form so delivered to the CompanyDebt Commitment Letter. Subject to the terms and conditions Section 7.12(c), as of the Facilities date of this Agreement, the net proceeds contemplated from the Financingthere are no side letters, together with understandings or other financial resources agreements or contracts of Parent and Purchaser, including cash on hand, willany kind, in each case to which Parent is a party, relating to the aggregate, through Debt Financing that could affect the expiration availability of the Offer and at Debt Financing contemplated by the Acceptance TimeDebt Commitment Letter, Effective Time and other than as expressly set forth in the Closing, be sufficient to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, and there is no restriction on the use of such cash for such purpose. (b) Debt Commitment Letter. As of the date of this Agreement, (i) no event has occurred which would constitute a breach (with or default (or an event which with notice or without notice, lapse of time or both both) would constitute a default), in each case, on the part of default or breach or failure to satisfy a condition by Parent under the Facilities Agreement or, to the knowledge Knowledge of Parent, any other party to thereto, under the Facilities Agreementterms and conditions of the Debt Commitment Letter, and (ii) subject to the satisfaction of the Offer Conditions and assuming the conditions contained set forth in ARTICLE VII hereofSection 8.1 and Annex A are satisfied at Closing and assuming the performance by the Company of its obligations under Section 7.12, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied by Parent prior to the Acceptance Time or that the Debt Financing or any other funds necessary to pay all amounts to be paid by Parent and Purchaser in connection with this Agreement and to consummate the transactions contemplated hereby, including amounts necessary to accept for payment and pay for any Shares pursuant to the Offer, to pay any amounts required to be paid pursuant to ARTICLE III, to consummate the Merger, to pay Parent and Purchaser’s costs and expenses, and to pay any debt required to be repaid in connection with the Merger, will not be available to Parent and Purchaser through the expiration of the Offer and at the Acceptance Time, Effective Time and the Closing. Parent has fully paid all fees required to be paid prior to the date of this Agreement pursuant to the Facilities Agreement, and Parent will pay when due all other fees arising under the Facilities Agreement as and when they become payableon Closing Date.