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prior to the date of this Agreement, and the respective commitments contained in the Facilities Agreement have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement.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.

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 Section 6.13(c), as of the date of this Agreement, there are no side letters, understandings or other agreements or contracts of any kind, in each case to which Parent is a party, relating to the Debt Financing that could affect the availability of the Debt Financing contemplated by the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, no event has occurred which (with or without notice, lapse of time or both) would constitute a default or breach or failure to satisfy a condition by Parent or, to the Knowledge of Parent, any other party thereto, under the terms and conditions of the Facilities AgreementDebt Commitment Letter, and assuming the net proceeds contemplated from conditions set forth in Section 7.1 and Section 7.3 are satisfied at Closing and assuming the Financingperformance by the Company of its obligations under Section 6.13, together with other financial resources of Parent and Purchaser, including cash on hand, will, in the aggregate, through the expiration does not have any reason to believe that any of the Offer and at conditions to the Acceptance Time, Effective Time and Debt Financing will not be satisfied by Parent prior to the Closing Date or that the Debt Financing will not be available to Parent on the date of 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.

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 as of the date of the consummation of the Merger. 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 any kind relating to ARTICLE IIIthe 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, no event has occurred which (with or without notice, lapse of time or both) would, or would reasonably be expected to, constitute a default or breach or failure to satisfy a condition by Parent or, to consummate the MergerKnowledge of Parent, any other party thereto, under the terms and conditions of the Debt Commitment Letter and, assuming the conditions set forth in Section 8.1(a) and Annex A are satisfied at Closing, Parent does not have any reason to pay believe that any of the conditions to the Debt Financing will not be satisfied by Parent and Purchaser’s costs and expenses, and prior to pay any debt required the Acceptance Time or that the full amount of the Debt Financing will not be available to be repaid in connection with the Merger, and there is no restriction Parent on the use date of such cash for such purposethe Closing.

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 Section 6.13(c), as of the date of this Agreement, there are no side letters, understandings or other agreements or contracts of any kind, in each case to which Parent is a party, relating to the Debt Financing that could affect the availability of the Debt Financing contemplated by the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, no event has occurred which (with or without notice, lapse of time or both) would constitute a default or breach or failure to satisfy a condition by Parent or, to the Knowledge of Parent, any other party thereto, under the terms and conditions of the Facilities AgreementDebt Commitment Letter, and assuming the net proceeds contemplated from conditions set forth in Section 7.1 and Section 7.3 are satisfied at Closing and assuming the Financingperformance by the Company of its obligations under Section 6.13, together with other financial resources of Parent and Purchaser, including cash on hand, will, in the aggregate, through the expiration does not have any reason to believe that any of the Offer and at conditions to the Acceptance Time, Effective Time and Debt Financing will not be satisfied by Parent prior to the Closing Date or that the Debt Financing will not be available to Parent on the date of 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.

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 contemplated by this 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.

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 Section 7.12(c), as of the date of this Agreement, there are no side letters, understandings or other agreements or contracts of any kind, in each case to which Parent is a party, relating to the Debt Financing that could affect the availability of the Debt Financing contemplated by the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, no event has occurred which (with or without notice, lapse of time or both) would constitute a default or breach or failure to satisfy a condition by Parent or, to the Knowledge of Parent, any other party thereto, under the terms and conditions of the Facilities AgreementDebt Commitment Letter, and assuming the net proceeds contemplated from conditions set forth in Section 8.1 and Annex A are satisfied at Closing and assuming the Financingperformance by the Company of its obligations under Section 7.12, together with other financial resources of Parent and Purchaser, including cash on hand, will, in the aggregate, through the expiration does not have any reason to believe that any of the Offer and conditions to the Debt Financing will not be satisfied by Parent prior to the Acceptance Time or that the Debt Financing will not be available to Parent 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 purposeClosing Date.

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 Section 7.12(c), as of the date of this Agreement, there are no side letters, understandings or other agreements or contracts of any kind, in each case to which Parent is a party, relating to the Debt Financing that could affect the availability of the Debt Financing contemplated by the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, no event has occurred which (with or without notice, lapse of time or both) would constitute a default or breach or failure to satisfy a condition by Parent or, to the Knowledge of Parent, any other party thereto, under the terms and conditions of the Facilities AgreementDebt Commitment Letter, and assuming the net proceeds contemplated from conditions set forth in Section 8.1 and Annex A are satisfied at Closing and assuming the Financingperformance by the Company of its obligations under Section 7.12, together with other financial resources of Parent and Purchaser, including cash on hand, will, in the aggregate, through the expiration does not have any reason to believe that any of the Offer and conditions to the Debt Financing will not be satisfied by Parent prior to the Acceptance Time or that the Debt Financing will not be available to Parent 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 purposeClosing Date.

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, subject to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). As of the date of this Agreement, to the knowledge of Parent, no such commitment has been withdrawn, terminated, repudiated, rescinded, amended, supplemented or modified, in any respect, and no such withdrawal, termination, repudiation, rescission, amendment, supplement or modification is contemplated. As of the date of this Agreement, neither Parent nor, to the knowledge of Parent, any other 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 knowledge of Parent no event has occurred or circumstance exists that, 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) constitute or result in a failure to satisfy any of the 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 compliance in all material respects by the Company with Section 6.6, Parent 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 contingencies other conditions related to the funding of the full amount of the Financing, Financing other than as expressly the terms thereof set forth in the Facilities Agreement in the form so delivered to the CompanyCommitment Letter. Subject to the terms and conditions As of the Facilities date of this Agreement, Parent has fully paid, or has caused to be fully paid, any and all commitment fees or other fees or deposits required by the net Commitment Letter to be paid on or before the date of this Agreement. The aggregate proceeds contemplated from the FinancingFinancing constitute all of the financing required for the consummation of the transactions contemplated by this Agreement and, together with other financial resources of Parent and Purchaser, including cash on hand, willare 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, in including for Parent to pay the aggregate, through the expiration of the Offer and at the Acceptance Time, Effective Time aggregate amounts payable pursuant to Article II and the Closingpayment of all fees, be sufficient to pay all amounts 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, and there is no restriction on the use of such cash for such purposeFinancing.