Common use of Financial Ability to Perform Clause in Contracts

Financial Ability to Perform. (a) Purchaser has delivered to Seller true and complete copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser and the financial institutions party thereto including all exhibits, schedules and annexes to such letter in effect as of the execution and delivery of this Agreement and (ii) the executed fee letter related thereto (together, the “Debt Commitment Letter”, and, subject to the last sentence of Section 5.17(g), the provision of funds as set forth therein, the “Financing”) (it being understood that such fee letter has been redacted to remove fees, the rates and amounts in the “market flex”, if any, and other terms that would not adversely affect the amount, conditionality, availability or termination of the Financing). As of the execution and delivery of this Agreement, other than the Debt Commitment Letter, there are no side letters or other written agreements, contracts or arrangements that impose conditions or other contingencies related to, or that would reasonably otherwise affect, the funding of the full amount of the Financing. As of the execution and delivery of this Agreement, there are no conditions or other contingencies related to the funding of the full amount of the Financing, other than as set forth in the Debt Commitment Letter. The commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded in any respect on or prior to the date of this Agreement. As of the execution and delivery of this Agreement, the Debt Commitment Letter represents (A) a valid, binding and enforceable obligation of Purchaser and (B) to Purchaser’s Knowledge, a valid, binding and enforceable obligation of each other party thereto, in the case of each of clauses (A) and (B), except as may be limited by the Enforceability Limitations. As of the execution and delivery of this Agreement, (i) the Debt Commitment Letter has not been amended, restated, supplemented or otherwise modified, or compliance with any of the terms waived, and (ii) no commitment under the Debt Commitment Letter has been withdrawn, terminated or rescinded in any respect. Purchaser has fully paid (or caused to be paid) any and all commitment fees and other amounts that are required to be paid pursuant to the terms of the Debt Commitment Letter on or prior to the execution and delivery of this Agreement, and will fully pay (or cause to be paid) any such amounts due on or before the Closing. As of the execution and delivery of this Agreement, no event has occurred, which, with or without notice, lapse of time or both, would reasonably be expected to constitute a breach or default on the part of Purchaser or, to Purchaser’s Knowledge, any other party to the Debt Commitment Letter. Assuming satisfaction of the conditions set forth in Article VII, Purchaser has no reason to believe that any of the conditions to funding set forth in the Debt Commitment Letter will not be satisfied on a timely basis, nor does Purchaser have Knowledge, as of the execution and delivery of this Agreement, that the Financing will not be available to Purchaser on or prior to the Closing Date in accordance with the terms of the Debt Commitment Letter. (b) Assuming the satisfaction of the conditions set forth in Section 7.1 and Section 7.2, the proceeds of the Financing, if funded, together with available cash and other lines of credit of Purchaser, shall constitute sufficient funds for Purchaser to enable Purchaser to deliver the Purchase Price to Seller at the Closing. Notwithstanding anything to the contrary in this Agreement, Purchaser acknowledges and agrees that its obligations to effect the Transactions or the other transactions contemplated by this Agreement are not conditioned upon the availability to Purchaser or any of its affiliates of any debt, equity or other financing in any amount whatsoever.

Financial Ability to Perform. (a) Purchaser As of the date of this Agreement, Xxxxxx has delivered to Seller true the Company true, complete and complete correct copies of an (i) executed debt commitment letter (the “Commitment Letter”) and (ii) executed commitment letterrelated fee letter (it being understood fee amounts, pricing caps and other terms (in each case which do not affect conditionality) have been redacted in a customary manner) (the “Fee Letter”), in each case, dated as of the date hereof, among Purchaser and the financial institutions party thereto including all exhibits, schedules and annexes to such letter in effect as of the execution and delivery of this Agreement and (ii) Agreement, from the executed fee letter related thereto (togetherFinancing Parties identified therein, pursuant to which such Financing Parties have agreed to provide Financing to Parent in the “Debt Commitment Letter”, andamounts set forth therein in connection with the transactions contemplated hereby, subject to the last sentence of Section 5.17(g)terms and conditions thereof, the provision of funds in each case as set forth thereinamended, the “Financing”) (it being understood that such fee letter has been redacted modified, supplemented, replaced or extended from time to remove fees, the rates and amounts in the “market flex”, if any, and other terms that would not adversely affect the amount, conditionality, availability or termination of the Financing). As of the execution and delivery of this Agreement, other than the Debt Commitment Letter, there are no side letters or other written agreements, contracts or arrangements that impose conditions or other contingencies related to, or that would reasonably otherwise affect, the funding of the full amount of the Financing. As of the execution and delivery of this Agreement, there are no conditions or other contingencies related to the funding of the full amount of the Financing, other than as set forth in the Debt Commitment Letter. The commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded in any respect on or prior to time after the date of this Agreement. . (b) As of the execution and delivery of this Agreement, the Debt Commitment Letter represents (A) a valid, binding and enforceable obligation of Purchaser and (B) to Purchaser’s Knowledge, a valid, binding and enforceable obligation of each other party thereto, in the case of each of clauses (A) and (B), except as may be limited by the Enforceability Limitations. As of the execution and delivery of this Agreementdate hereof, (i) the Debt Commitment Letter has not been amended, restated, supplemented or otherwise modified, or compliance with any of the terms waived, and (ii) no commitment under the Debt respective commitments contained in the Commitment Letter has have not been withdrawn, terminated or rescinded in any respect. Purchaser has fully paid , (or caused to be paidiii) any and all commitment fees and other amounts that are required to be paid pursuant to the terms of the Debt Commitment Letter on or prior to the execution and delivery of this Agreement, and will fully pay (or cause to be paid) any such amounts due on or before the Closing. As of the execution and delivery of this Agreement, no event has occurred, occurred which, with or without notice, lapse of time or both, would or reasonably be expected to constitute a default or breach or default on the part of Purchaser Parent or any of its Affiliates or, to Purchaser’s Knowledgethe Knowledge of Parent, any other party to Person, in each case under the Debt Commitment Letter. Assuming satisfaction of , (iv) Parent has paid, or will pay within one Business Day, any and all commitment fees and other fees in connection with the conditions set forth in Article VII, Purchaser has no reason to believe that any of the conditions to funding set forth in the Debt Commitment Letter will not and related fee letters that are required to be satisfied on a timely basis, nor does Purchaser have Knowledge, as of paid under the execution and delivery of this Agreement, that the Financing will not be available to Purchaser Commitment Letter or related fee letters on or prior to the Closing Date date hereof as and when due and (v) the Commitment Letter is in full force and effect and represents a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each other party thereto, and is enforceable against Parent and, to the Knowledge of Parent, each other party thereto in accordance with the terms of the Debt Commitment Letterits terms. (bc) Assuming As of the date hereof, there are no conditions precedent or other contractual contingencies related to funding the full amount of the Financing on the Closing Date other than those expressly set forth in the Commitment Letter and the Fee Letter. As of the date hereof, assuming the satisfaction of the conditions set forth in Section 7.1 Annex I and Section 7.2Article VIII, Parent does not have any reason to believe that (i) any of the conditions to the Financing will not be satisfied on or prior to the Closing Date or (ii) the full amount of the Financing necessary for Parent to consummate the transactions contemplated hereby, if any, will not be available to Parent on the Closing Date. Other than the Fee Letter, there are no side letters, understandings or other agreements, contracts or arrangements to which Parent is a party relating to the Commitment Letter that would reasonably be expected adversely affect the availability, conditionality, enforceability, termination or amount of the Financing. (d) Parent will have at the Acceptance Time, and the Effective Time, respectively, all funds (including funds comprised of proceeds of the Financing, if funded, together with available ) necessary (a) to pay the aggregate cash and other lines consideration payable to holders of credit of Purchaser, shall constitute sufficient funds for Purchaser to enable Purchaser to deliver the Purchase Price to Seller Company Common Stock due at the Closing. Notwithstanding anything such times pursuant to the contrary in Offer and this Agreement, Purchaser acknowledges respectively, (b) to repay any then-outstanding Indebtedness for borrowed money of the Company and agrees that its obligations Subsidiaries under the Company Credit Agreement (up to effect the Transactions amounts outstanding as of the date hereof or permitted to be incurred pursuant to the other terms of this Agreement) in connection with the consummation of the transactions contemplated by this Agreement are not conditioned upon (to the availability extent any such repayment is required in connection with the consummation of the transactions contemplated by this Agreement) and (c) to Purchaser or pay any of its affiliates of any debt, equity fees and expenses or other financing amounts payable by Parent in any amount whatsoeverconnection with the consummation of the transactions contemplated by the Offer or this Agreement, respectively (such amounts, the “Transaction Amounts”).