Common use of Availability of Funds; Solvency Clause in Contracts

Availability of Funds; Solvency. (a) Parent will have at and as of the Closing Date sufficient available funds to consummate the Mergers and to make all payments required to be made in connection therewith, including payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations to be paid in connection with the transactions contemplated hereby, the payment of any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses of the Mergers. As of the date of this Agreement, Parent has no reason to believe that the representations contained in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or either Merger Sub hereunder. (b) Immediately after giving effect to the transactions contemplated by this Agreement (including any financing in connection with the transactions contemplated by this Agreement), (i) Parent and its Subsidiaries, taken as a whole, will not have incurred Indebtedness beyond their ability to pay such Indebtedness as it matures or becomes due, (ii) the then present fair saleable value of the assets of Parent and its Subsidiaries, taken as a whole, will exceed the amount that will be required to pay their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness as it becomes absolute or matured, (iii) the assets of Parent and its Subsidiaries, taken as a whole, at a fair valuation, will exceed their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness and (iv) Parent and its Subsidiaries, taken as a whole, will not have unreasonably small capital to carry on their businesses as presently conducted or as proposed to be conducted.

Availability of Funds; Solvency. (a) Parent will have at and as of the Closing Date sufficient available funds to consummate the Mergers and to make all payments required to be made in connection therewith, including payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations all amounts to be paid by it hereunder on and after the Closing Date, in connection accordance with the Equity Commitment Letter. Parent is not entering into this Agreement or the transactions contemplated hereby, the payment of any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers intent to hinder, delay or defraud either present or future creditors. Assuming (including all Indebtedness i) the truth and accuracy of the Company representations and its Subsidiaries required warranties of Seller as set forth in Section 2.2 and (ii) the Acquired Companies’ solvency immediately prior to be repaidthe Closing, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses of the Mergers. As of the date of this Agreement, Parent has no reason to believe that the representations contained in the immediately preceding sentence will not be true at and then as of the Closing Date. Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or either Merger Sub hereunder. (b) Immediately and immediately after giving effect to the transactions contemplated by hereunder, including the making of the payments contemplated under this Agreement (Agreement, including any financing in connection with the transactions contemplated by this Agreement)related fees and expenses, (i) Parent and its SubsidiariesSubsidiaries (which at such time will include the Acquired Companies), taken as a whole, will not have incurred Indebtedness beyond their ability be Solvent. For purposes of this Section 2.1(e), “Solvent” means that, with respect to pay such Indebtedness any Person and as it matures or becomes dueof any date of determination, (iiA) the then amount of the “present fair saleable value” of the assets of such Person, will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise,” as of such date, as such quoted terms are generally determined in accordance with applicable federal Laws governing determinations of the insolvency of debtors, (B) the present fair saleable value of the assets of Parent and its Subsidiariessuch Person will, taken as a wholeof such date, will exceed be greater than the amount that will be required to pay their probable Liabilities the liability of such Person on its Indebtedness as its Indebtedness becomes absolute and matured, (including the probable C) such Person will not have, as of such date, an unreasonably small amount of all contingent Liabilitiescapital with which to conduct its business, and (D) and such Person will be able to pay its Indebtedness as it becomes absolute or matured, (iii) the assets of Parent and its Subsidiaries, taken as a whole, at a fair valuation, will exceed their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness and (iv) Parent and its Subsidiaries, taken as a whole, will not have unreasonably small capital to carry on their businesses as presently conducted or as proposed to be conductedmatures.

Availability of Funds; Solvency. (a) Parent will have at Buyer has delivered to the Sellers a true and as complete copy of an executed commitment letter from Standard General Master Fund L.P. (the Closing Date sufficient available funds “Equity Commitment Party”) to consummate Buyer (the Mergers “Equity Commitment Letter”) to provide equity financing in the form of contributions of cash and debt under the Credit Facilities to make all payments required Buyer in exchange for equity securities to be made in connection therewithissued to the Equity Commitment Party (the “Equity Financing” and, including payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations to be paid in connection together with the transactions contemplated herebyDebt Financing, the payment of any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses of the Mergers“Financing”). As of the date of this Agreementhereof, Parent has no reason to believe that the representations contained Equity Commitment Letter, in the immediately preceding sentence will not be true at form so delivered, is in full force and as effect and is a valid and binding obligation of the Closing Date. Notwithstanding anything in this Agreement Buyer subject to the contraryterms and conditions therein. No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Buyer or the Equity Commitment Party under the Equity Commitment Letter. Other than as expressly set forth in the Equity Commitment Letter, there are no event shall conditions precedent or other contingencies to the receipt or availability of any funds or financing by or Equity Commitment Party’s obligation to Parent or any of its Affiliates or any other financing transaction be a condition to any of fund the obligations of Parent or either Merger Sub hereunderEquity Financing. (b) Immediately Assuming the conditions set forth in Article IX are satisfied and that Buyer shall have received the Financing at or prior to the Closing, Buyer will have at the Closing sufficient cash in immediately available funds to pay the Cash Consideration, and any other costs, fees and expenses required to be paid by it under this Agreement and the other Transaction Documents. (c) As of the Closing and immediately after giving effect to consummating the transactions contemplated by this Agreement (including any financing in connection with and the other transactions contemplated by the Transaction Documents, Buyer will not, assuming the accuracy of Sellers’ representations and warranties under this Agreement), (i) Parent and be insolvent (either because its Subsidiaries, taken as a whole, financial condition is such that the sum of its debts is greater than the fair value of its assets or because the present fair value of its assets will not have incurred Indebtedness beyond their ability be less than the amount required to pay such Indebtedness its probable Liability on its debts as it matures or becomes duethey become absolute and matured), (ii) the then present fair saleable value of the assets of Parent and its Subsidiaries, taken as a whole, will exceed the amount that will be required to pay their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness as it becomes absolute or matured, (iii) the assets of Parent and its Subsidiaries, taken as a whole, at a fair valuation, will exceed their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness and (iv) Parent and its Subsidiaries, taken as a whole, will not have unreasonably small capital with which to carry on their businesses engage in its business or (iii) have incurred or plan to incur debts beyond its ability to repay such debts as presently conducted or as proposed to be conductedthey become absolute and matured.

Availability of Funds; Solvency. (a) Parent will have at Purchaser has previously delivered to Seller a true, correct and complete copy of the commitment letter, dated as of October 28, 2011, among Guarantor, Credit Suisse AG, Credit Suisse Securities (USA) LLC, Barclays Capital and Royal Bank of Canada (the Closing Date sufficient available funds to consummate “Commitment Letter”) for financing of the Mergers Purchase Price and to make all payments required to be made in connection therewith, including the payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations to be paid in connection with the transactions contemplated hereby, the payment of any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses of the Mergers. As of the date of this Agreement, Parent has no reason to believe that the representations contained Purchaser in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or either Merger Sub hereunder. (b) Immediately after giving effect to consummating the transactions contemplated by this Agreement (including any financing the “Financing”). The Commitment Letter has been duly executed and delivered by Guarantor and is a legal valid and binding obligation of Guarantor and the other parties thereto in full force and effect, and Guarantor has paid all fees and expenses required thereby or in connection therewith to the extent required to be paid on or prior to the date hereof and in the future shall pay any such fees as they become due. The Commitment Letter has not been amended, supplemented or otherwise modified in any respect, except, in each case, with the prior written consent of Seller as permitted by Section 5.04, and the financing commitments thereunder have not been withdrawn or terminated. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of Purchaser or Guarantor or, to the knowledge of Purchaser or Guarantor, any other parties thereto, under the Commitment Letter. Purchaser does not have any reason to believe that any of the conditions to Financing will not be satisfied or that the Financing will not be available to Purchaser on a timely basis to consummate the Acquisition and the other transactions contemplated by this Agreement)Agreement and the Ancillary Agreements. (b) As of the Closing and immediately after consummating the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements, Purchaser will not (i) Parent be insolvent (either because its financial condition is such that the sum of its debts is greater than the fair value of its assets (including both tangible and intangible assets) or because the present fair salable value of its Subsidiaries, taken as a whole, assets will not have incurred Indebtedness beyond their ability be less than the amount required to pay such Indebtedness its probable liability on its debts as it matures or becomes duethey become absolute and matured), (ii) the then present fair saleable value of the assets of Parent and its Subsidiaries, taken as a whole, will exceed the amount that will be required to pay their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness as it becomes absolute or matured, (iii) the assets of Parent and its Subsidiaries, taken as a whole, at a fair valuation, will exceed their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness and (iv) Parent and its Subsidiaries, taken as a whole, will not have unreasonably small capital with which to carry on their businesses engage in its business, including the Business or (iii) have incurred or plan to incur debts beyond its ability to repay such debts as presently conducted or as proposed to be conductedthey become absolute and matured.

Availability of Funds; Solvency. (a) Parent will have at has delivered to the Company a true and complete copy of a commitment letter, dated as of the Closing Date sufficient available funds to consummate the Mergers date hereof, between Parent and to make all payments required to be made in connection therewith, including payment each of the aggregate Merger Considerationinvestment funds managed by Advent International Corporation named therein (the “Commitment Letter”), any payments made in respect of pursuant to which the equity compensation obligations investor parties thereto have committed, subject to be paid in connection with the transactions contemplated herebyterms and conditions set forth therein, to invest the respective amounts set forth therein (collectively, the payment “Commitment”). The Commitment Letter has not been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in the Commitment Letter have not been withdrawn or rescinded in any respect. The Commitment Letter is in full force and effect and is the valid, binding and enforceable obligations of any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers Parent and the other transactions contemplated hereby) and all premiums and fees required parties thereto. There are no conditions precedent or other contingencies relating to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses the funding of the Mergers. As full amount of the date Commitment, other than as set forth in or contemplated by the Commitment Letter. Subject to the terms and conditions of the Commitment Letter, and subject to the terms and conditions of this Agreement, Parent has no reason the aggregate proceeds contemplated by the Commitment Letter will be sufficient to believe that accept for payment and pay for any shares of Company Common Stock pursuant to the representations contained in Offer and consummate the immediately preceding sentence will not be true at Merger and as of the Closing Date. Notwithstanding anything other Transactions, to make all other payments contemplated under this Agreement and to pay all fees and expenses associated therewith unless otherwise provided in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or either Merger Sub hereunderAgreement. (b) Immediately Assuming (i) satisfaction of the conditions to the obligation of Parent and Merger Sub to consummate the Offer and the Merger and (ii) the accuracy of the representations and warranties of the Company set forth in Article 3 hereof that would be reasonably meaningful to the subject matter of this representation and warranty (without giving effect to materiality or Company Material Adverse Effect qualifiers; it being understood that any Company Material Adverse Effect or materiality qualifier or limitation that is the direct object and does not modify such representations and warranties of the Company shall not be so disregarded), then immediately after giving effect to the transactions contemplated by this Agreement Transactions (including any financing in connection with the transactions contemplated by this AgreementTransactions), as of the Effective Time, (iA) Parent the aggregate “fair saleable value” of the assets of the Surviving Corporation and its consolidated Subsidiaries, taken as a whole, as of such date, will exceed the value of all “liabilities” of the Surviving Corporation and its consolidated Subsidiaries, taken as a whole, on their existing debts (including contingent liabilities) as such debts become absolute and matured, (B) the Surviving Corporation and its consolidated Subsidiaries, taken as a whole, will not have incurred Indebtedness beyond have, as of such date, an unreasonably small amount of capital for the operation of their ability businesses in which they are engaged or proposed to pay be engaged following such Indebtedness as it matures or becomes duedate, and (iiC) the then present fair saleable value of the assets of Parent Surviving Corporation and its consolidated Subsidiaries, taken as a whole, will exceed the amount that will be required able to pay their probable Liabilities (liabilities, including the probable amount of all contingent Liabilities) and Indebtedness other liabilities, as it becomes absolute or matured, (iii) the assets of Parent and its Subsidiaries, taken as a whole, at a fair valuation, will exceed their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness and (iv) Parent and its Subsidiaries, taken as a whole, will not have unreasonably small capital to carry on their businesses as presently conducted or as proposed to be conductedthey mature.

Availability of Funds; Solvency. (a) Parent will have at Purchaser has previously delivered to Seller a true, correct and as complete copy of the Closing Date sufficient available funds to consummate Debt Commitment Letter for the Mergers financing of the Purchase Price and to make all payments required to be made in connection therewith, including the payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations to be paid in connection with the transactions contemplated hereby, the payment of any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses of the Mergers. As of the date of this Agreement, Parent has no reason to believe that the representations contained Purchaser in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or either Merger Sub hereunder. (b) Immediately after giving effect to consummating the transactions contemplated by this Agreement (the “Debt Financing”). The Debt Commitment Letter has been duly executed and delivered by Purchaser and is a legal valid and binding obligation of Purchaser and the other parties thereto in full force and effect, and Purchaser has paid all fees and expenses required thereby or in connection therewith to the extent required to be paid on or prior to the date hereof and in the future shall pay any such fees as they become due. The Debt Commitment Letter has not been amended, supplemented or otherwise modified in any respect, except, in each case, with the prior written consent of Seller, and the financing commitments thereunder have not been withdrawn or terminated. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of Purchaser or, to the knowledge of Purchaser, any other parties thereto, under the Debt Commitment Letter. Purchaser does not have any reason to believe that any of the conditions to the Debt Financing (including any financing in connection with conditions to the Debt Financing that relate to conditions precedent, representations and warranties, covenants or events of default under any other debt agreements of Purchaser) will not be satisfied or that the Debt Financing will not be available to Purchaser on a timely basis to consummate the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements (b) As of the Closing and immediately after consummating the Acquisition and the other transactions contemplated by this Agreement), Purchaser will not (i) Parent and be insolvent (either because its Subsidiaries, taken as a whole, financial condition is such that the sum of its debts is greater than the fair value of its assets or because the present fair salable value of its assets will not have incurred Indebtedness beyond their ability be less than the amount required to pay such Indebtedness its probable liability on its debts as it matures or becomes duethey become absolute and matured), (ii) the then present fair saleable value of the assets of Parent and its Subsidiaries, taken as a whole, will exceed the amount that will be required to pay their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness as it becomes absolute or matured, (iii) the assets of Parent and its Subsidiaries, taken as a whole, at a fair valuation, will exceed their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness and (iv) Parent and its Subsidiaries, taken as a whole, will not have unreasonably small capital with which to carry on their businesses engage in its business, including the Business, or (iii) have incurred or plan to incur debts beyond its ability to repay such debts as presently conducted or as proposed to be conductedthey become absolute and matured.

Availability of Funds; Solvency. (a) Parent will have at Buyer has sufficient immediately available funds, in cash, to pay the Purchase Price, and in Buyer's reasonable judgment, to provide the Business, Nippon Selas and XX Xxxxx with sufficient working capital, to pay and discharge the Assumed Liabilities as of the Closing Date sufficient available funds to consummate the Mergers they become due and to make all payments required to be made in connection therewith, including payment of the aggregate Merger Consideration, pay any payments made in respect of equity compensation obligations to be paid in connection with the transactions contemplated hereby, the payment of any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid payable pursuant to this Agreement and associated costs and expenses of to effect the Mergers. As transactions contemplated hereby. (b) Buyer is solvent as of the date of this Agreement, Parent has no reason to believe that the representations contained in the immediately preceding sentence will and Buyer, Nippon Selas and XX Xxxxx shall not be true at and become insolvent as a result of the Closing Date. Notwithstanding anything in consummation of the transactions contemplated by this Agreement Agreement, except that no representation is made with respect to the contraryeffects of Seller's removal of cash from Nippon Selas and XX Xxxxx prior to Closing. Buyer is, in no event shall the receipt or availability of any funds or financing by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or either Merger Sub hereunder. (b) Immediately and after giving effect to the transactions contemplated by this Agreement Agreement, Buyer, Nippon Selas and XX Xxxxx shall be, able to pay the Assumed Liabilities and their other debts as they become due, and Buyer's property now has, and after giving effect to the transaction contemplated hereby, Buyer's, Nippon Selas' and XX Xxxxx' property shall have, a fair salable value greater than the amounts required to pay its debts (including any financing a reasonable estimate of the amount of all contingent liabilities), except that in each case, no representation is made with respect to the effects of Seller's removal of cash from Nippon Selas and XX Xxxxx prior to Closing. Buyer has adequate capital to carry on its business, and after giving effect to the transactions contemplated by this Agreement, Buyer, Nippon Selas and XX Xxxxx will have adequate capital to carry on their businesses except that no representation is made with respect to the effects of Seller's removal of cash from Nippon Selas and XX Xxxxx prior to Closing. No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated by this Agreement)Agreement with the intent to hinder, (i) Parent and its Subsidiaries, taken as a whole, will not have incurred Indebtedness beyond their ability to pay such Indebtedness as it matures delay or becomes due, (ii) the then defraud either present fair saleable value or future creditors of the assets of Parent and its Subsidiaries, taken as a whole, will exceed the amount that will be required to pay their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness as it becomes absolute or matured, (iii) the assets of Parent and its Subsidiaries, taken as a whole, at a fair valuation, will exceed their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness and (iv) Parent and its Subsidiaries, taken as a whole, will not have unreasonably small capital to carry on their businesses as presently conducted or as proposed to be conductedBuyer.