Common use of Financial Capacity Clause in Contracts

Financial Capacity. (a) Taking into account the Financing Commitment, such Purchaser has, and at the Closing will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser has delivered to the Seller a true, correct and complete copy of the Commitment Letter provided by its affiliated Sponsor, dated as of the date hereof. Such Commitment Letter has not been amended or modified, and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effect, (ii) constitutes the legal, valid and binding obligation of such Purchaser and the Sponsor party thereto, and (iii) is enforceable by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicable, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment Letter. As of the date of this Agreement, the Sponsor affiliated with such Purchaser is not subject to bankruptcy proceedings. (c) Notwithstanding anything to the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise required to do so under the terms and conditions of this Agreement.

Financial Capacity. (a) Taking Parent has entered into account a debt commitment letter, dated as of the date of this Agreement (the foregoing commitment letter, together with all exhibits and schedules thereto, the “Debt Commitment Letter”), from the Debt Financing Entities party thereto, pursuant to which such Debt Financing Entities have committed, subject to the terms and conditions thereof, to provide debt financing in the amounts set forth therein. The debt financing committed pursuant to the Debt Commitment Letter is collectively referred to in this Agreement as the “Debt Financing.” (b) Parent has delivered to the Company a true, complete and correct copy of the executed Debt Commitment Letter and any executed fee letters, engagement letters and fee credit letters related thereto, subject, in the case of such fee letters, engagement letters and fee credit letters, to redaction solely of fee amounts, pricing terms and other terms that are customarily redacted, including any dates related thereto (none of which could adversely affect the conditionality, enforceability, availability or termination of the Debt Financing or reduce the aggregate principal amount of the Debt Financing below the amount required to pay the Financing CommitmentAmounts). (c) Except as expressly set forth in the Debt Commitment Letter, such Purchaser hasthere are no conditions precedent to the obligations of the Debt Financing Entities provide the Financing or any contingencies that would permit the Debt Financing Entities to reduce the aggregate principal amount of the Debt Financing below the amount required to pay the Financing Amounts (as defined below). As of the date of this Agreement, Parent does not have any reason to believe that it will be unable to satisfy on a timely basis all terms and at conditions required to be satisfied by it in any of the Debt Commitment Letter on or prior to the Closing Date, nor does Parent have knowledge that any Debt Financing Entity will have, not perform its obligations thereunder. (d) The aggregate proceeds contemplated by the Debt Commitment Letter shall provide Parent with cash proceeds on the Closing Date sufficient resources to pay, for the satisfaction of all of Parent’s and Merger Sub’s obligations in cash any connection with the Closing under this Agreement and all amounts necessary for it to consummate under the transactions contemplated hereby at the ClosingDebt Commitment Letter, including payment of its Pro Rata Share (i) the aggregate Merger Consideration and all amounts payable pursuant to Section 2.4 and (ii) any premiums, fees, costs and expenses of or payable by Parent, Merger Sub or the Seller Purchase Price and Surviving Corporation on the Company Purchase PriceClosing Date (such amounts, and in the case of Purchaser A onlycollectively, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due.“Financing Amounts”) (be) As of the date of this Agreement, such Purchaser has delivered to the Seller a true, correct and complete copy of the Debt Commitment Letter provided by its affiliated Sponsor, dated as of the date hereof. Such Commitment Letter has not been amended or modified, and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effect, (ii) constitutes effect and constitute the legal, valid valid, binding and binding obligation enforceable obligations of such Purchaser and Parent and, to the Sponsor Knowledge of Parent, all the other parties thereto. As of the date of this Agreement, neither Parent nor Merger Sub or, to the Knowledge of Parent, any other party thereto, is in breach of any terms or conditions set forth in the Commitment Letters and (iii) is enforceable no event has occurred that, with or without notice, lapse of time or both, constitutes, or could constitute, a default, breach or failure to satisfy a condition by Parent under the Seller terms and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicable, conditions of the applicable Financing Commitment other than such Dent Commitment Letter. There are no conditions precedent Parent has paid in full any and all commitment fees or other fees required to be paid on or prior to the consummation date hereof pursuant to the terms of such Financing the Debt Commitment other than those set forth in such Commitment LetterLetter on or before the date of this Agreement. As of the date of this Agreement, the Sponsor affiliated with such Purchaser is Debt Commitment Letter has not subject to bankruptcy proceedings. (c) Notwithstanding anything been modified, amended or altered and none of the respective commitments under any of the Debt Commitment Letter have been terminated, reduced, withdrawn or rescinded in any respect, and, to the contrary contained hereinKnowledge of Parent, in no event shall this Section 4.4 be deemed breached termination, reduction, withdrawal, modification, amendment, alteration or rescission thereof is contemplated (and no condition set forth in Section 6.3 shall be deemed other than to have failed add lenders, lead arrangers, bookrunners, coordinators, managers, purchasers, syndication agents or other entities who had not executed the Debt Commitment Letter as a result of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise required to do so under the terms and conditions date of this Agreement, but solely to the extent that such addition would not effect a Prohibited Modification).

Financial Capacity. (a) Taking into account the Financing Commitment, such Purchaser has, and at the Closing will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser has delivered to the Seller a true, correct and complete copy of the Commitment Letter provided by its affiliated Sponsor, dated as of the date hereof. Such Commitment Letter has not been amended or modified, and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effect, (ii) constitutes the legal, valid and binding obligation of such Purchaser and the Sponsor party thereto, and (iii) is enforceable by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicable, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment Letter. As of the date of this Agreement, the Sponsor affiliated with such Purchaser is not subject to bankruptcy proceedings. (c) Notwithstanding anything to the contrary contained herein, in no event shall this Section 4.4 ‎4.4 be deemed breached (and no condition set forth in Section 6.3 ‎6.3 shall be deemed to have failed as a result of any actual or alleged breach of this Section 4.4‎4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise required to do so under the terms and conditions of this Agreement.

Financial Capacity. (a) Taking into account the Financing Commitment, such Purchaser has, and at the Closing will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including xxxxxxxxx payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser has delivered to the Seller a true, correct and complete copy of the Commitment Letter provided by its affiliated Sponsor, dated as of the date hereof. Such Commitment Letter has not been amended or modified, and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effect, (ii) constitutes the legal, valid and binding obligation of such Purchaser and the Sponsor party thereto, and (iii) is enforceable by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicable, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment Letter. As of the date of this Agreement, the Sponsor affiliated with such Purchaser is not subject to bankruptcy proceedings. (c) Notwithstanding anything to the contrary contained herein, in no event shall this Section 4.4 ‎4.4 be deemed breached (and no condition set forth in Section 6.3 ‎6.3 shall be deemed to have failed as a result of any actual or alleged breach of this Section 4.4‎4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise required to do so under the terms and conditions of this Agreement.

Financial Capacity. (a) Taking into account Buyer has delivered to Seller an executed capital call agreement, dated on or prior to the date hereof, from Fortress Transportation and Infrastructure Investors LLC, a Delaware limited liability company (the “Sponsor”), in favor of Seller (the “Limited Guaranty”), pursuant to which the Sponsor is guaranteeing the obligation of Buyer to pay the Regulatory Termination Fee pursuant to Section 10.02(b) or the Financing Commitment, such Purchaser has, and at the Closing will have, sufficient resources Termination Fee pursuant to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become dueSection 10.02(c). (b) As of the date of this Agreement, such Purchaser Buyer has delivered to Seller a Debt Commitment Letter, pursuant to which the Debt Financing Sources have committed to provide debt financing for the transactions contemplated by this Agreement in the aggregate amount set forth therein. Buyer has also delivered to Seller a true, correct and complete (other than the redaction noted below) copy of the Commitment Letter provided by its affiliated Sponsorfee letter (as amended, dated as supplemented, replaced, extended or otherwise modified in accordance with Section 5.12 from time to time after the date of this Agreement, the “Fee Letter”) which sets forth certain terms of the date hereof. Such Debt Financing (provided, that provisions in such Fee Letter may be redacted in a customary manner (i.e., redacted as to pricing, economic market flex and other provisions; provided, however, that the redacted pricing, market flex and other economic provisions set forth therein will not affect availability or conditionality of the Debt Financing at Closing)). (c) The Debt Commitment Letter has not been amended or modifiedLetter, the Limited Guaranty and the respective commitments contained Fee Letter, in such Commitment Letter have not been withdrawnthe forms delivered by Buyer to Seller, terminated or rescinded. Such Commitment Letter (i) is are in full force and effect, (ii) constitutes the legalhave not been withdrawn or terminated or otherwise amended or modified in any respect, valid and binding obligation of no such Purchaser and the Sponsor amendment or modification is contemplated by any party thereto, thereto and (iii) is enforceable by are legal, valid, and binding obligations of Buyer and, to the Seller and knowledge of Buyer, the Company against such Purchaser and the Sponsor party other parties thereto, subject, in accordance with its termsthe case of enforceability, subject to bankruptcythe Enforceability Exception. As of the date hereof, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There there are no side letters letters, other agreements or understandings or arrangements, including conditions precedent or other Contracts related contingencies relating to the funding or investing, as applicable, of the applicable full amount of the Debt Financing Commitment other than such Commitment Letter. There are no and the only conditions precedent to the consummation obligations of such the parties to the Debt Commitment Letter to fund the full amount of the Debt Financing Commitment other than thereunder are those expressly set forth in such the Debt Commitment Letter. As of the date hereof, there has been no event which has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the part of Buyer or, to the knowledge of the Buyer, any other party to the Debt Commitment Letter, the Limited Guaranty or the Fee Letter. Buyer has fully paid any and all commitment fees or other fees required by the Debt Commitment Letter, the Limited Guaranty and the Fee Letter to be paid by it on or prior to the date of this AgreementAgreement in connection with the Debt Financing and the Limited Guaranty. As of the date hereof, Buyer represents that all fees, expenses and other amounts that would become due and payable in connection with the Sponsor affiliated with such Purchaser Debt Commitment Letter are not required to be paid earlier than the Closing Date. As of the date hereof, Buyer is not subject aware of any change, circumstance, fact, occurrence or event that, with or without notice, lapse of time or both, would reasonably be expected to bankruptcy proceedings(i) make any of the assumptions or any of the statements set forth in the Debt Commitment Letter or the Fee Letter inaccurate, (ii) result in any of the terms or conditions in any of the Debt Commitment Letter or the Fee Letter not being satisfied, (iii) cause the Fee Letter or the Debt Commitment Letter to be ineffective or (iv) otherwise result in the Debt Financing not being available on a timely basis in order to consummate the transactions contemplated by this Agreement. (cd) Notwithstanding anything The Debt Financing, when funded in accordance with the Debt Commitment Letter, is sufficient to enable Buyer to pay the contrary contained herein, in no event shall this Section 4.4 amounts required by Article 2 to be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at paid by Buyer on the Closing if and when it is otherwise required to do so Date. (e) Buyer’s obligations under the terms and conditions of this AgreementAgreement are not conditioned in any manner whatsoever upon Buyer obtaining any financing.

Financial Capacity. Assuming (a) Taking into account that the Financing Commitment, such Purchaser has, and at the Closing will have, sufficient resources parties to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share each of the Seller Purchase Price Debt Commitment Letter and the Company Purchase PriceEquity Commitment Arrangements (in each case other than Buyer and, and in the case of Purchaser A onlythe Equity Commitment Arrangements, Parent Guarantor) perform their respective obligations in accordance with the Additional Company Purchase Price terms thereof and (b) satisfaction of the Election Purchase Price (conditions precedent to Buyer’s obligations hereunder, Buyer shall have at the extent payable hereunder) Closing sufficient cash, available lines of credit and other sources of immediately available funds to make payment of all the fees and expenses expressly required amounts to be paid by such Purchaser it in order to consummate all of the transactions contemplated hereunder without any restrictions on the Closing Date, including (i) the amounts payable pursuant to transfer such funds at Closing Section 1.4, including amounts owing pursuant to the Seller outstanding amount of Repaid Debt and the CompanyCompany Transaction Expenses, as and (ii) all of the out-of-pocket costs of Buyer arising from the consummation of the transactions and any fees incurred in connection with the Financing (the foregoing amounts, collectively, the “Required Closing Amount”). Buyer has provided to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser has delivered to the Seller Company a true, correct complete and complete accurate copy of the fully executed (i) debt commitment letter, together with the related fee letter (subject to customary redactions of the fee amounts and other economic terms therein (provided that such redactions do not include, for the avoidance of doubt, any terms that would adversely affect the conditionality or availability of the Debt Financing, and none of the redacted provisions would allow the Debt Financing Sources to reduce the amount of funding to be provided under the Debt Commitment Letter provided by its affiliated Sponsor(or the definitive documentation entered into pursuant thereto) or change the conditions on which such funding is available if in any such case such change would reasonably be expected to prevent, materially delay or impede the consummation of the Debt Financing thereunder)), dated as of the date hereof, between the lenders party thereto (including any lender who becomes party thereto by joinder in accordance with the terms of such debt commitment letter, collectively, the “Debt Financing Sources”) and Buyer (such debt commitment letter and fee letter, together with all exhibits, schedules, annexes and term sheets attached thereto, and, to the extent otherwise in accordance with the terms hereof, supplements and amendments thereto, the “Debt Commitment Letter”), pursuant to which the Debt Financing Sources party thereto have committed to lend the amounts set forth therein on the terms and subject to the conditions set forth therein for the purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”) and (ii) equity commitment and investment agreement, dated as of the date hereof, between Green Equity Investors VII, L.P., a Delaware limited partnership and Green Equity Investors Side VII, L.P., a Delaware limited partnership (the “Equity Financing Sources”), and Parent Guarantor (together with all exhibits, schedules, annexes and, to the extent otherwise in accordance with the terms hereof, supplements and amendments thereto, the “Equity Commitment Arrangements” and, together with the Debt Commitment Letter, the “Commitment Arrangements”), pursuant to which the Equity Financing Sources agreed to invest the amounts set forth therein on the terms and subject to the conditions set forth therein for the purpose of funding the transactions contemplated by this Agreement (the “Equity Financing” and, together with the Debt Financing, the “Financing”). Such The Commitment Letter has Arrangements have not been amended amended, supplemented or modifiedmodified in any manner in contravention of this Agreement, and as of the respective date hereof the commitments contained in such the Commitment Letter Arrangements have not been withdrawnwithdrawn or rescinded in any respect. As of the date hereof, terminated or rescinded. Such the Commitment Letter (i) is Arrangements are in full force and effect, (ii) effect and each constitutes the legal, valid and binding obligation of such Purchaser and Buyer and, in the Sponsor party case of the Equity Commitment Arrangements, Parent Guarantor and, to Buyer’s knowledge, each of the other parties thereto, and (iii) is enforceable by the Seller and the Company against each such Purchaser and the Sponsor party thereto, Person in accordance with its terms, subject except to the extent that enforceability thereof may be limited by bankruptcy, insolvency, reorganization reorganization, fraudulent conveyance, moratorium and other Legal Requirements similar Laws affecting the enforcement of general applicability relating to or affecting creditors’ rights generally and to by general equity principlesprinciples of equity. There Other than the Commitment Arrangements, there are no other agreements, side letters or arrangements relating to the amount, conditionality, availability or termination of the Financing. There is no condition precedent or other Contracts contingency related to the funding or investing, as applicable, of the applicable Financing Commitment full amount of the Financing, other than such as expressly set forth in the Commitment LetterArrangements. There are no Buyer has fully paid any and all commitment fees or other fees required by the Debt Commitment Letter to be paid by it on or prior to the date hereof. Assuming the satisfaction of the conditions precedent to Buyer’s obligations hereunder, Buyer is not aware of any fact or occurrence that, with or without notice, lapse of time or both, would constitute a default or breach under any Commitment Arrangement and has no reason to believe that it will not be able to satisfy any term or condition that is required to be satisfied as a condition to the consummation of such Financing Commitment other than those set forth in such Commitment Letter. As availability or funding of the date full amount of this Agreementthe Financing, or that the Sponsor affiliated with such Purchaser Financing will not be made available to Buyer on the Closing Date. Each of Buyer and Merger Sub affirms that it is not subject to bankruptcy proceedings. (c) Notwithstanding anything a condition to the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result of Closing that Buyer obtain the Financing or any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at other financing for the Closing if and when it is otherwise required to do so under the terms and conditions of this Agreementtransactions contemplated hereby.

Financial Capacity. (a) Taking into account Assuming the Financing Commitmentfinancing contemplated by the Commitment Letters is funded in accordance with the terms of the Commitment Letters, such Purchaser hasBuyer shall have, and at pursuant to the Commitment Letters and/or any Substitute Financing, sufficient cash, available lines of credit or other sources of immediately available funds to pay in cash the Preliminary Purchase Price in accordance with the terms hereof, all other amounts to be paid by Buyer hereunder on the Closing will have, sufficient resources to pay, in cash any Date and all amounts necessary for it to consummate costs and expenses of Buyer incurred in connection with the consummation of the transactions contemplated hereby at and payable on the ClosingClosing Date (such amounts, including payment the “Required Amount”). Buyer has provided Seller Parent with true, correct and complete signed counterpart(s) of its Pro Rata Share (i) commitment letters, dated as of the Seller Purchase Price date hereof, providing for debt financing in respect of the transactions contemplated by this Agreement and a redacted version of all related fee letters (such commitment letters and fee letters, collectively, the “Debt Commitment Letters” and the Company Purchase Price, and in financing contemplated by the case of Purchaser A onlyDebt Commitment Letters, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder“Debt Financing”) and all (ii) commitment letters, dated as of the fees and expenses expressly required date hereof, pursuant to be paid by such Purchaser hereunder without any restrictions which one or more Affiliates of Buyer have agreed with Buyer to transfer such funds at Closing to make an equity investment in Buyer (the Seller and “Equity Commitment Letters” and, together with the CompanyDebt Commitment Letters, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its “Commitment Letter as they become dueLetters”). (b) As of the date of this Agreementhereof, such Purchaser has delivered to the Seller a true, correct and complete copy of the Commitment Letter provided by its affiliated SponsorLetters are in full force and effect, dated as of the date hereof. Such Commitment Letter has are not been amended subject to any contingencies or modifiedconditions that are not set forth therein, and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter , or otherwise amended, modified or supplemented in any respect (i) is in full force other than as permitted by Section 6.12(e)), and effect, (ii) constitutes constitute the legal, valid and binding obligation obligations of such Purchaser Buyer, and to Buyer’s Knowledge (with respect to the Sponsor Debt Commitment Letters only), each other party thereto, except as enforcement may be limited by Remedies Exception. Other than this Agreement and the Commitment Letters, Buyer has not entered into any Contract which imposes any contingencies or conditions to the funding of the Debt Financing or equity financing commitments contemplated by such Commitment Letters that could affect the availability of such financing on the Closing Date, other than as described in the Commitment Letters or pursuant to which any Person has the right to withdraw, terminate or rescind, or otherwise amend, modify or supplement the terms of such commitments (other than as set forth in Section 6.12(e) or the exercise of “market flex”). To Buyer’s Knowledge, as of the date hereof, subject to all other parties complying with their obligations hereunder and under the Commitment Letters, (i) no event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach under any term or condition of any of the Commitment Letters, and (iiiii) is enforceable Buyer has no reasonable basis to believe that it or any other party thereto will be unable to satisfy on a timely basis any term or condition of closing to be satisfied pursuant to the Commitment Letters. Buyer or an Affiliate thereof on its behalf has fully paid any and all commitment or other fees required by the Seller and Debt Commitment Letters to be paid on or prior to the Company against such Purchaser and date hereof and, assuming funding of the Sponsor party thereto, financing in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicable, terms of the applicable Financing Commitment Letters, will have sufficient cash or readily available funds to pay any other than such fees required by the Debt Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment Letter. As of the date of this Agreement, the Sponsor affiliated with such Purchaser is not subject to bankruptcy proceedingsLetters when due. (c) Notwithstanding anything Buyer hereby acknowledges and agrees that its obligations to effect the transactions contemplated by this Agreement are not subject to the contrary contained hereinavailability to Buyer of financing. (d) No funds to be paid by Buyer to Sellers have derived from or will have been derived from, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result or constitute, either directly or indirectly, the proceeds of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise required to do so criminal activity under the terms and conditions anti-money laundering Laws of this Agreementthe United States.

Financial Capacity. As of the date hereof, Xxxxxx has delivered to the Company a true and complete copy of the executed Credit Agreement and any fee letters or ancillary agreements entered into in connection therewith (awith fee amounts, economic terms and any other provision thereof to be redacted in a customary manner as may be required by the applicable Debt Financing Sources), each of which has not been amended, modified or terminated prior to the execution of this Agreement. Assuming the Debt Financing is funded in accordance with the terms of the Credit Agreement and assuming satisfaction of all of the conditions to Closing set forth in Article VI, the aggregate proceeds of the Debt Financing, along with the Company Cash on Hand, will be sufficient to fund (i) Taking into account the Financing Commitment, such Purchaser has, and at the Closing will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (Cancelled Shares) pursuant to the extent payable hereunderMerger (assuming no Dissenting Shares) and all consideration payable pursuant to this Agreement in respect of Company Equity Awards, and (ii) the payment of all fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds Parent or Merger Sub at Closing in connection with the Transactions (such amount, the “Required Funding Amount”). As of the date hereof, the commitment contained in the Credit Agreement has not been withdrawn, modified or rescinded in any respect. As of the date hereof, the Credit Agreement is in full force and effect against Parent or an indirect parent of Parent and, to the Seller Knowledge of Parent, each other party thereto and the Companyrepresents valid, as binding and enforceable obligations of Parent and, to the extent Knowledge of Parent, each other party thereto (subject to the Bankruptcy and Equity Exception). Parent has fully paid (or caused to be paid) any and all commitment fees and other amounts required to be paid pursuant to, by the Credit Agreement and subject any fee letters or ancillary agreements entered into in connection therewith that are due and payable on or prior to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser has delivered to the Seller a true, correct and complete copy of the Commitment Letter provided by its affiliated Sponsor, dated as of the date hereof. Such Commitment Letter has not been amended or modified, and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effect, (ii) constitutes the legal, valid and binding obligation of such Purchaser and the Sponsor party thereto, and (iii) is enforceable by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicable, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment Letter. As of the date of this Agreement, assuming the Sponsor affiliated satisfaction of the conditions set forth in Section 6.1 and Section 6.2, no event has occurred of which Parent is aware that, with such Purchaser is or without notice, lapse of time or both, would constitute a breach or default on the part of Parent under any term of the Credit Agreement that would reasonably be expected to materially impair or adversely affect the Debt Financing and the timely receipt of the proceeds thereof. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it will be unable to satisfy on a timely basis any applicable Debt Financing Condition on or prior to Closing Date. Except as set forth in the Credit Agreement, there are no conditions precedent related to the funding of the full amount of the Debt Financing other than the applicable Debt Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that the Debt Financing will not subject be made available in full to bankruptcy proceedings. (c) Parent on the Closing Date. Notwithstanding anything to the contrary contained herein, Xxxxxx and Xxxxxx Sub agree that a breach of the representations and warranties in no event shall this Section 4.4 be deemed breached (and no condition 4.11 shall not result in the failure of the conditions to the Closing set forth in Section 6.3 shall be deemed to have failed as a result of any actual or alleged breach of this Section 4.4), 6.3(a) if (notwithstanding any actual or alleged such breach), such Purchaser and subject to the satisfaction or waiver by Parent of the conditions to closing set forth in Section 6.1 and Section 6.2, Parent is willing and able to to, and actually does, consummate its obligations at the Closing if and when it is otherwise required on the Closing Date. There are no side letters, fee letters or other written Contracts containing any conditions to do so under the terms and conditions funding of this the full amount of the Debt Financing other than as expressly set forth in, or contemplated by, the Credit Agreement.

Financial Capacity. (a) Taking into account At or prior to the Financing CommitmentClosing, such Purchaser has, and at the Closing Buyer will have, pursuant to the Commitment Letters and/or any Substitute Financing, sufficient resources cash, available lines of credit or other sources of immediately available funds to pay, pay in cash the Merger Consideration in accordance with the terms of Article IV and any and all other amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, it hereunder. Attached hereto as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser has delivered to the Seller a Exhibit B are true, correct and complete copy signed counterpart(s) of (a) the Commitment Letter provided by its affiliated Sponsorcommitment letter(s), dated as of the date hereof. Such , providing for debt financing in respect of the transactions contemplated by this Agreement (the “Debt Commitment Letter has not been amended or modifiedLetters”) and (b) the commitment letter(s), and dated as of the respective commitments contained date hereof, pursuant to which Affiliates of Buyer have agreed with the parent company of Buyer to make an equity investment in such parent company in connection with the transactions contemplated hereby (the “Equity Commitment Letter have not been withdrawnLetter” and together with the Debt Commitment Letters, terminated or rescindedthe “Commitment Letters”), which debt financing contemplated by the Debt Commitment Letters, when taken together with the amount of equity capital to be provided pursuant to the Equity Commitment Letter, will be sufficient to pay the Merger Consideration, all other amounts to be paid by Buyer hereunder and all expenses of Buyer incurred in connection with the consummation of the transactions contemplated hereby. Such As of the date hereof, the Commitment Letter (i) is Letters are in full force and effect, (ii) constitutes are, as of the legaldate hereof, valid and binding obligation obligations of such Purchaser each of the parties thereto and the Sponsor party thereto, and (iii) is enforceable by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, are not subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to any contingencies or affecting creditors’ rights and to general equity principles. There conditions that are no side letters or other Contracts related to the funding or investing, as applicable, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those not set forth in such the copies of the Commitment LetterLetters attached hereto as Exhibit B. Other than the Commitment Letters, Buyer and its parent company have not entered into any agreement pursuant to which any Person has the right to modify or amend the terms of the debt financing or equity investment contemplated by the Commitment Letters. As To Buyer’s Knowledge, as of the date hereof, no event has occurred which, with or without notice, lapse of this Agreementtime or both, would constitute a default or breach under any term or condition of the Sponsor affiliated with such Purchaser is not subject Commitment Letters, and as of the date hereof, Buyer has no reason to bankruptcy proceedings. (c) Notwithstanding anything believe that it or any other party thereto will be unable to satisfy on a timely basis any term or condition of closing to be satisfied pursuant to the contrary contained herein, in no event shall this Section 4.4 Commitment Letters. Buyer or an Affiliate thereof on its behalf has fully paid any and all commitment or other fees required by the Debt Commitment Letters to be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at paid by the Closing if and when it is otherwise required to do so under the terms and conditions of this Agreementdate hereof.

Financial Capacity. Parent has delivered to the Company a true and complete copy of the executed Equity Commitment Letter, which has not been amended or modified prior to the execution of this Agreement. The aggregate proceeds of the Equity Financing, along with the Company Cash on Hand, will be sufficient to fund (ai) Taking into account the Financing Commitment, such Purchaser has, and at the Closing will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (Cancelled Shares) pursuant to the extent payable hereunderMerger (assuming no Dissenting Shares) and all consideration payable pursuant to this Agreement in respect of Company Stock Awards, and (ii) the payment of all fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds Parent or Merger Sub at Closing to in connection with the Seller and Transactions (such amount, the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement“Required Funding Amount”). The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreementhereof, such Purchaser has delivered to the Seller a true, correct and complete copy of commitment contained in the Commitment Letter provided by its affiliated Sponsor, dated as of the date hereof. Such Equity Commitment Letter has not been amended withdrawn, modified or modified, and the respective commitments contained rescinded in such any respect. The Equity Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effecteffect against Parent and, to the Knowledge of Parent, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (ii) constitutes the legal, valid and binding obligation of such Purchaser and the Sponsor party thereto, and (iii) is enforceable by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization the Bankruptcy and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicable, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment LetterEquity Exception). As of the date of this Agreement, assuming the Sponsor affiliated with such Purchaser is not subject to bankruptcy proceedings. (c) Notwithstanding anything to satisfaction of the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition conditions set forth in Section 6.3 shall 6.1 and Section 6.2, no event has occurred of which Parent is aware that, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or any other party thereto under any term of the Equity Commitment Letter that would reasonably be deemed expected to have failed as a result materially impair or adversely affect the Equity Financing and the timely receipt of any actual or alleged breach the proceeds thereof. As of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise required to do so under the terms and conditions date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other party to the Equity Commitment Letter will be unable to satisfy on a timely basis any applicable Financing Condition or their respective obligations under the Equity Commitment Letter. Except as set forth in the Equity Commitment Letter, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing other than the applicable Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Financing will not be made available in full to Parent on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financing.

Financial Capacity. (a) Taking into account Buyer has delivered to Seller a true, accurate and complete copy of the Financing Commitmentfully executed debt commitment letter (including all exhibits, such Purchaser has, schedules and at annexes thereto and the Closing will have, sufficient resources to payexecuted fee letters and/or engagement letter associated therewith and referenced therein (which fee letters and engagement letter, in cash each case, may be redacted with respect to any interest rates, fee amounts, pricing caps and all amounts necessary for it to consummate other similar economic terms (including flex terms) set forth therein (none of which would adversely affect the transactions contemplated hereby at the Closingconditionality, including payment of its Pro Rata Share enforceability, quantum, availability or termination of the Seller Purchase Price Debt Financing, or reduce the aggregate principal amount thereof))), dated as of the date hereof, between Buyer and X.X. Xxxxxx Xxxxx Bank, N.A. (the Company Purchase Price“Debt Commitment Letter”), and in pursuant to which the case of Purchaser A onlyDebt Financing Sources party thereto (the “Committed Lenders”) have committed, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject only to the terms ofand conditions set forth therein, this Agreement. The Sponsor affiliated to provide debt financing, in the amounts set forth therein (such debt financing required to pay the Required Amounts (excluding, for the avoidance of doubt, any debt financing set forth therein with such Purchaser hasrespect to refinancing any of Buyer’s or its Subsidiaries’ existing Indebtedness), and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due“Debt Financing”). (b) As The Debt Commitment Letter, as delivered, is in full force and effect on the date of this Agreement and, as of the date of this Agreement, such Purchaser has delivered to the Seller a true, correct and complete copy of the Commitment Letter provided by its affiliated Sponsor, dated as of the date hereof. Such Commitment Letter has not been amended or modified, and the respective commitments contained in such the Debt Commitment Letter have not been withdrawn, terminated rescinded, terminated, amended or rescinded. Such modified, and no withdrawal, rescission, termination, amendment or modification is contemplated (except in connection with any amendments or modifications to effectuate any “market flex” terms contained in the Debt Commitment Letter (i) is in full force and effect, (ii) constitutes provided as of the legal, valid and binding obligation of such Purchaser and the Sponsor party thereto, and (iii) is enforceable by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject date hereof or to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters add any additional agents or other Contracts related to the funding or investing, financial institutions thereto as applicable, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment Letterprovided for therein). As of the date of this Agreement, the Sponsor affiliated Debt Commitment Letter constitutes the legal, valid and binding obligations of Buyer and, to the knowledge of Buyer, the other parties thereto, enforceable in accordance with such Purchaser is not its respective terms against the parties thereto (subject to bankruptcy proceedingsapplicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). As of the date of this Agreement, Buyer has fully paid (or caused to be fully paid) any and all commitment fees, costs and expenses or other fees, costs and expenses required to be paid on or prior to the date of this Agreement pursuant to the Debt Commitment Letter. There are no conditions precedent related to the funding of the full amount of the Debt Financing, other than as expressly set forth in or expressly contemplated by the Debt Commitment Letter. Except for the Debt Commitment Letter and as set forth therein, there are no other agreements or side letters of any kind to which Buyer or any of its Affiliates is a party that impose additional conditions, modify, amend or expand the conditions to the funding of the Debt Financing in a manner that would impair the availability of the Debt Financing on the Closing Date, or reduce the total amount of the Debt Financing. Assuming satisfaction of the conditions set forth in Article 2, as of the date of this Agreement, Buyer does not know of any facts or circumstances that would be expected to result in Buyer being unable to satisfy, prior to Closing, any term or condition of Closing to be satisfied by it contained in the Debt Commitment Letter, or that would otherwise cause the Debt Financing to be unavailable on the Closing Date. (c) Notwithstanding anything to As of the contrary contained hereindate of this Agreement, in no event shall has occurred or circumstance exists which, with or without notice, lapse of time or both, would (x) constitute a default or breach on the part of Buyer or, to Buyer’s knowledge, any other party thereto under any term or condition of the Debt Commitment Letter or (y) result in any portion of the Debt Financing necessary to pay the Required Amount being unavailable on the Closing Date. As of the date of this Section 4.4 be deemed breached (Agreement and no condition assuming satisfaction of the conditions set forth in Section 6.3 shall Article 2, neither Buyer nor any of its Affiliates has any reason to believe (both before and after giving effect to any “market flex” terms contained in the Debt Commitment Letter) that any of the terms or conditions contained in the Debt Commitment Letter will not be deemed satisfied on a timely basis on or before the Closing Date or that the amounts committed pursuant to have failed as a result the Debt Financing necessary to pay the Required Amount will not be available to Buyer on the Closing Date if the terms or conditions to be satisfied by it contained in the Debt Commitment Letter are satisfied. The aggregate proceeds contemplated by the Debt Financing, cash held by Buyer and other available sources will be sufficient for Buyer to (i) pay any and all fees expressly required to be paid on the Closing Date by Buyer in connection with the Debt Financing or the transactions contemplated by this Agreement on the Closing Date, (ii) (without duplication to clause (i)) satisfy all of any actual the payment obligations of Buyer expressly required to be paid pursuant to this Agreement and the Debt Financing on or alleged breach of this Section 4.4prior to the Closing and (iii) repay or refinance all Indebtedness required to be repaid or reduced at Closing (clauses (i) through (iii), if (notwithstanding any actual or alleged breachthe “Required Amount”), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise required to do so under the terms and conditions of this Agreement.

Financial Capacity. (a) Taking into account the Financing Commitment, such Purchaser has, and at the Closing will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Holdings has provided Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser has delivered to the Seller a true, correct true and complete copy of (a) the Commitment Letter provided by its affiliated Sponsordebt commitment letter, dated as of the date hereofof this Agreement (such letter, together with all annexes and exhibits attached thereto, the “Debt Commitment Letter”) from JPMorgan Chase Bank, N.A. (the “Commitment Party”) pursuant to which the Commitment Party has agreed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein for the purposes of financing the Contemplated Transactions, related fees and expenses to be incurred by Holdings, Newco or Buyer in connection therewith and for the other purposes set forth therein (the “Debt Financing”) and (b) the associated fee letters (subject to redaction of fee amounts and certain other terms that would not reduce the aggregate amount or affect the conditionality of the Debt Financing) (the “Fee Letters”). Such None of the Debt Commitment Letter has not have been amended or modified, and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effect, (ii) constitutes the legal, valid and binding obligation of such Purchaser and the Sponsor party thereto, and (iii) is enforceable by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related modified prior to the funding or investing, as applicable, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment Letterdate hereof. As of the date of this Agreement, (i) each Debt Commitment Letter is in full force and effect, constitutes the Sponsor affiliated with such Purchaser is not subject to bankruptcy proceedings. (c) Notwithstanding anything valid and binding obligation of Buyer and, to the contrary contained hereinKnowledge of Buyer, each of the other parties thereto, in each case in accordance with their terms (except as limited by (x) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar Laws relating to creditors’ rights generally and (y) general principles of equity), (ii) the respective commitments contained therein have not been withdrawn or rescinded in any respect, and (iii) there are no event shall conditions precedent or other contingencies relating to the funding of the full amount of the proceeds covered thereby, except as stated in the Debt Commitment Letter and the Fee Letters. Other than the Debt Commitment Letter and the Fee Letters, there are no side letters or other contracts or arrangements setting forth conditions precedent or other contingencies related to the funding of the full amount of the Debt Financing to which Buyer or any of its Affiliates are a party. As of the date of this Section 4.4 be deemed breached (and Agreement, there are no condition conditions precedent or other contingencies related to the funding of the Debt Financing other than as expressly set forth in the Debt Commitment Letter and the Fee Letters. Assuming (1) the satisfaction of the conditions in Section 6.3 shall be deemed to 7.1 hereof and Section 7.3 hereof, and (2) completion of the Marketing Period, Buyer will have failed as a result of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if sufficient funds to consummate the Contemplated Transactions, to perform its obligations hereunder (including all payments to be made by it in connection herewith) and when it is otherwise required to do so under pay all expenses of Buyer related to this Agreement and the terms and conditions Contemplated Transactions. As of the date of this Agreement, Buyer has no reason to believe that it will be unable to satisfy any condition to the Debt Financing set forth in the Debt Commitment Letter on a timely basis or that the Debt Financing will not be available to the Buyer at the Closing, including any reason to believe on the date of this Agreement that the Commitment Party will not perform its funding obligations under the Debt Commitment Letter in accordance with their respective terms and conditions.

Financial Capacity. (a) Taking into account Notwithstanding any other provision of this Agreement to the Financing Commitmentcontrary, such Purchaser hasbut subject in all respects to the provisions of Section 11.12, Parent understands and at acknowledges that the Closing will have, sufficient resources to pay, in cash any obligations of Parent and all amounts necessary for it Merger Sub to consummate the transactions contemplated hereby at by this Agreement and the ClosingRelated Agreements are not in any way contingent upon or otherwise subject to Parent’s or Merger Sub’s consummation of any financing arrangement, including payment Parent’s or Merger Sub’s obtaining of its Pro Rata Share any financing or the availability, grant, provision or extension of any financing to Parent or Merger Sub. Subject to the funding of the Seller Purchase Price Debt Financing, the satisfaction of the conditions set forth in Articles VI and VII, compliance by each of the Company and the Company Purchase PriceRepresentative in all material respects with its covenants and other agreements hereunder, and in the case accuracy of Purchaser A onlythe representations and warranties made by the Company herein, on the Additional Company Purchase Price and the Election Purchase Price (Closing Date immediately prior to the extent payable hereunder) and all consummation of the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, Merger in accordance with this Agreement. The Sponsor affiliated , Parent or Merger Sub will have cash, available lines of credit or other sources of immediately available funds, that together with such Purchaser hasany Closing Date Cash of the Company Group, and at will be sufficient to pay the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become dueDate Payments in accordance with this Agreement. (b) As of the date of this Agreement, such Purchaser Parent has delivered to the Seller Company a true, correct and complete copy of the executed Debt Financing Commitment Letter provided by its affiliated SponsorLetters (subject to redaction of customary fee information). Except as disclosed to the Company, dated the Debt Financing Commitment Letters have not been amended or modified in any manner that would materially affect the availability of the Debt Financing prior to the date of this Agreement. Except as disclosed to the Company, as of the date hereof. Such Commitment Letter of this Agreement, none of Parent, Merger Sub or any of their respective Affiliates has not been amended entered into any agreement, side letter or modified, and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effect, (ii) constitutes the legal, valid and binding obligation of such Purchaser and the Sponsor party thereto, and (iii) is enforceable by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability arrangement relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to the funding or investingDebt Financing, as applicable, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those as set forth in such the Debt Financing Commitment LetterLetters that would materially affect the availability of the Debt Financing. The proceeds of the Debt Financing (both before and after giving effect to the exercise of any or all “market flex” provisions related thereto) will be sufficient to make all Closing Date Payments on the Closing Date. As of the date of this Agreement, the Sponsor affiliated with such Purchaser is respective commitments contained in the Debt Financing Commitment Letters have not subject to bankruptcy proceedings. (c) Notwithstanding anything been withdrawn or rescinded in any respect. Subject to the contrary contained hereinRemedies Exception, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed the Debt Financing Commitment Letters are, as a result of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise required to do so under the terms and conditions date of this Agreement, in full force and effect and, to the Knowledge of Parent, represent a valid, binding and enforceable obligation of the Financing Sources named therein to provide the financings contemplated thereby, subject to the satisfaction or waiver of the Financing Conditions and the Remedies Exception. Parent has fully paid (or caused to be paid) any and all commitment fees and other amounts that are due and payable on or prior to the date of this Agreement in connection with the Debt Financing. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a material breach or material default on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Debt Financing Commitment Letters. As of the date of this Agreement, Parent and Merger Sub have no reason to believe that they or any other party thereto will be unable to satisfy on a timely basis any term of the Debt Financing Commitment Letters. There are no conditions precedent or other contingencies related to the funding of the full amount of the Debt Financing, other than the Financing Conditions. The only conditions precedent or other contingencies related to the initial funding of the Debt Financing on the Closing Date to be included in the Debt Financing Documents will be the Financing Conditions contained in the Debt Financing Commitment Letters. As of the date hereof, Parent has no reason to believe that any of the Financing Conditions will not be satisfied or the Debt Financing will not be made available to Parent on the Closing Date. Parent represents that all fees, expenses and other amounts that would become due and payable under the Debt Financing Commitment Letters are not required to be paid earlier than the Closing Date.

Financial Capacity. (a) Taking into account Attached hereto as Exhibit D is a true and complete fully executed copy of a debt commitment letter, dated as of the date hereof (as amended, restated, replaced, supplemented or otherwise modified or waived in accordance with Section 6.10(c), the “Commitment Letter”), among the Financing CommitmentSources and Buyer, such Purchaser has, and at pursuant to which the Closing will have, sufficient resources Financing Sources have committed to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required provide or cause to be paid by such Purchaser hereunder without any restrictions provided debt financing to transfer such funds at Closing to Buyer in connection with the Seller and Contemplated Transactions (the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due“Financing”). (b) As of the date of this Agreementhereof, such Purchaser has the Commitment Letter, together with the ancillary documents referenced therein and delivered to the Seller a trueMembers’ Representative, correct and complete copy constitute all of the agreements entered into between each of the Financing Sources, on the one hand, and Buyer and/or its Subsidiaries, on the other hand, with respect to the financing arrangements contemplated thereby. 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 Commitment Letter provided by its affiliated Sponsor, dated as Letter. As of the date hereof. Such , the Commitment Letter has not been amended or modified, and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effect, (ii) effect and constitutes the legal, valid and binding obligation of such Purchaser and Buyer and, to the Sponsor party theretoknowledge of Buyer, and each of the other parties thereto (iii) is enforceable except as may be limited by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability reorganization, moratorium or similar laws affecting or relating to or affecting creditors’ rights generally and to general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicable, principles of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment Letterequity). As of the date of this Agreementhereof, the Sponsor affiliated with such Purchaser Commitment Letter has not been modified or amended in any respect and the respective commitments contained in the Commitment Letter have not been withdrawn or rescinded. As of the date hereof, neither Buyer nor any of its Subsidiaries is not subject to bankruptcy proceedings. (c) Notwithstanding anything in breach of the Commitment Letter, nor do Buyer or any of its Subsidiaries have knowledge of any breach of the Commitment Letter by any of the other parties thereto. As of the date hereof, to the contrary contained hereinknowledge of Buyer, there are no facts or circumstances that are reasonably likely to adversely affect the availability of the Financing. Buyer has timely paid in no event shall this Section 4.4 be deemed breached (full any and no condition set forth in Section 6.3 shall be deemed to have failed as a result of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise all commitment fees and/or other fees required to do so be paid on or prior to the date hereof under the terms of the Commitment Letter and conditions will pay all other commitment fees and/or other fees required to be paid under the terms of this Agreementthe Commitment Letter as they become due. Buyer acknowledges that its obligation to consummate the Contemplated Transactions is not contingent on receipt of any financing.

Financial Capacity. (a) Taking into account the Financing Commitment, such Purchaser has, and at the Closing will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser Buyer has delivered to the Seller a true, correct and complete copy of the executed Equity Commitment Letter provided from Sponsor to invest, subject to the terms and conditions therein, cash in the aggregate amount set forth therein (the “Equity Financing”) for the purpose of satisfying all of the obligations of Buyer or any of its Affiliates in this Agreement or, to the extent payable at Closing, under any Ancillary Agreement to which Buyer or its Affiliate is a party (including payment by Buyer of all obligations pursuant to Section 2.3, including the aggregate Closing Payment, and payment of any other fees, expenses and obligations required to be paid or satisfied by Buyer on the Closing Date (the amount of such aggregate payment obligations, the “Required Amount”)). Assuming (i) the Equity Financing is funded in accordance with the Equity Commitment Letter and (ii) the performance by Seller of its affiliated Sponsorobligations hereunder, dated as of the date hereof. Such , the net proceeds contemplated by the Equity Commitment Letter has not been amended or modified, and will be sufficient to fund the respective commitments contained in such payment by Buyer of the Required Amount. The Equity Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effecteffect and, (ii) constitutes the except as not prohibited by this Agreement, has not been withdrawn or terminated or otherwise amended or modified in any respect, and no such amendment or modification is contemplated. The Equity Commitment Letter is a legal, valid and binding obligation of such Purchaser Buyer and the Sponsor party other parties thereto, and (iii) is enforceable except as may be limited by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other Legal Requirements fraudulent conveyance, reorganization, moratorium or similar Laws from time to time in effect affecting generally the enforcement of general applicability relating to or affecting creditors’ rights and remedies, and general principles of equity. No event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to general equity principlesconstitute a default or breach under the Equity Commitment Letter by any of the parties thereto; provided that Buyer is not making any representation or warranty regarding the accuracy of the representations and warranties in Article 3. Buyer has fully paid any and all commitment fees or other fees required by the Equity Commitment Letter to be paid on or before the date of this Agreement. The aggregate proceeds from the Equity Financing constitute all of the financing required for Buyer to consummate the transactions contemplated by this Agreement at Closing and the payment of all associated costs and expenses to be paid by Buyer at Closing. As of the date hereof, Xxxxx does not have any reason to believe that any of the conditions to the Equity Financing will not be satisfied or that the Equity Financing will not be available to Buyer on the Closing Date; provided that Buyer is not making any representation regarding the accuracy of the representations and warranties set forth in Article 3 or compliance by Seller and the Acquired Entities with their obligations hereunder. The Equity Commitment Letter contains all of the conditions precedent to the obligations of the parties thereunder to make the Equity Financing available to Buyer on the terms therein and, except as set forth in the Equity Commitment Letter, there are no contingencies that would permit the parties thereunder to reduce the total amount of the Equity Financing. There are no side letters or other Contracts agreements or arrangements to which Buyer or any of its Affiliates is a party related to the funding or investing, as applicable, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those (i) as expressly set forth in the Equity Commitment Letter or (ii) any such Commitment Letter. As side letters, agreements or arrangements that would not adversely affect the availability of the date of this Agreement, the Sponsor affiliated with such Purchaser is not subject to bankruptcy proceedings. (c) Notwithstanding anything to the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at Equity Financing on the Closing if and when it is otherwise required to do so under the terms and conditions of this AgreementDate.

Financial Capacity. (a) Taking into account At or prior to the Financing Commitmentdate of this Stock Purchase Agreement, such Purchaser has, and at the Closing will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share Buyers have delivered a copy of the Seller executed commitment letter and framework agreements, attached to this Stock Purchase Price Agreement as Exhibit I (the “Binding Acquisition Financing Commitment Letters”), from Daqing State-owned Assets Operating Co., Ltd. and Shanghai Jiding Industrial Area Development (Group) Co., Ltd. to provide financing in an aggregate amount of RMB 4,000,000,000 to Buyers to fund the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (the “Acquisition Financing”). The Acquisition Financing, when funded in accordance with the Binding Acquisition Financing Commitment Letters, will, together with cash on hand held by Buyers, provide financing sufficient to pay the extent payable hereunder) and Purchase Price as well as all the fees and expenses expressly other amounts required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, Buyers under this Stock Purchase Agreement. The Sponsor affiliated with such Purchaser hasBinding Acquisition Financing Commitment Letters are valid and in full force and effect and have not been modified or rescinded, in whole or in part, and at no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the Closing will havepart of Buyers under any term or condition of the Binding Acquisition Financing Commitment Letters. Except as described in, sufficient resources or provided for in, the Binding Acquisition Financing Commitment Letters, there are no (i) conditions precedent to meet its the obligations under its of Daqing State-owned Assets Operating Co., Ltd and Shanghai Jiading Industrial Development (Group) Co., Ltd. to fund the Acquisition Financing or (ii) causes of termination of the Binding Acquisition Financing Commitment Letter as they become dueLetters, the Acquisition Financing or any material commitment thereunder. All approvals, consents, authorizations or Permits from, or filings or notices to, a Governmental Entity which are required for Daqing State-owned Assets Operating Co. and Shanghai Jiading Industrial Area Development (Group) Co., Ltd. to provide the Acquisition Financing, including approvals from the relevant State-owned assets supervisory and regulatory authority, have been obtained. To the Knowledge of Buyer, there is no fact or circumstance that would reasonably be expected to prevent or delay the satisfaction of any term or condition of the Binding Acquisition Financing Commitment Letters or that would permit Daqing State-owned Assets Operating Co., Ltd or Shanghai Jiading Industrial Development (Group) Co., Ltd. to reduce the total amount of the Acquisition Financing or impose any additional conditions precedent to the availability of the Acquisition Financing. (b) As Notwithstanding the provisions of Section 4.4(a) and Section 4.4(b), the date obligations of U.S. Buyer and Sweden Buyer under this Stock Purchase Agreement, such Purchaser has delivered including the obligation to the Seller a trueproceed with Closing subject only to satisfaction, correct and complete copy of the Commitment Letter provided by its affiliated Sponsor, dated as of the date hereof. Such Commitment Letter has not been amended or modified, and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effect, (ii) constitutes the legal, valid and binding obligation of such Purchaser and the Sponsor party thereto, and (iii) is enforceable by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicablewaiver, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment Letter. As of the date Article 8 of this Stock Purchase Agreement, the Sponsor affiliated with such Purchaser is are not subject to bankruptcy proceedings. (c) Notwithstanding anything the availability to the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result of any actual U.S. Buyer or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at Sweden Buyer on the Closing if and when it is otherwise required Date of sufficient financing to do so under fund payment of the terms and conditions of this AgreementPurchase Price.

Financial Capacity. (a) Taking into account the Financing Commitment, such Purchaser has, and at the Closing will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (On or prior to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing date hereof, Buyer has delivered to the Seller true, complete and the Companyfully executed copies of a commitment letter (including all related exhibits, schedules, annexes, supplements and term sheets thereto, and including any related fee letter as described below, as and each of the foregoing may be amended, supplemented, replaced, substituted, terminated or otherwise modified or waived from time to time after the extent required date hereof in compliance with Section 5.22, the “Debt Commitment Letter”) from JPMorgan Chase Bank, N.A. confirming its commitment to be paid pursuant toprovide Buyer with debt financing in connection with the Transactions in the amount set forth therein (together with any debt securities issued in lieu of any portion of thereof, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due“Financing”). (b) The Debt Commitment Letter is in full force and effect and is a valid and legally binding obligation of Buyer and, to the knowledge of Buyer, the other parties thereto, enforceable against Buyer and, to the knowledge of Buyer, the other parties thereto in accordance with its terms (subject to the Enforceability Exceptions). As of the date of this Agreementhereof, such Purchaser has delivered to the Seller a true, correct and complete copy of the Commitment Letter provided by its affiliated Sponsor, dated as of the date hereof. Such Debt Commitment Letter has not been amended or modified, and the respective commitments contained in such the Debt Commitment Letter have not been withdrawn, terminated rescinded or rescindedotherwise modified. Such All fees (if any) required to be paid under the Debt Commitment Letter on or prior to the date hereof have been paid in full. As of the date hereof, (i) is in full force no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of Buyer or, to Buyer’s knowledge, any other Person under the Debt Commitment Letter and effect, (ii) constitutes Buyer does not have any reason to believe that the legal, valid terms and binding obligation conditions of such Purchaser and the Sponsor party thereto, and (iii) is enforceable Financing that are within the control of Buyer or any Debt Financing Source will not be satisfied on or prior to the Closing Date or that the full amount of the Financing contemplated by the Seller and Debt Commitment Letter to be funded at the Company against such Purchaser and Closing will not be made available on the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicable, of the applicable Financing Commitment other than such Commitment Letter. Closing Date. (c) There are no conditions precedent directly or indirectly related to the consummation funding of such the full amount of the Financing Commitment other than those as expressly set forth in such the Debt Commitment Letter. As Other than the Debt Commitment Letter, there are no other Contracts, arrangements or understandings entered into by Buyer or any Affiliate thereof related to the funding of the Financing (except for (i) customary fee letters relating to the commitments in the Debt Commitment Letter, a true, complete and fully executed copy of each of which has been provided to Seller prior to the date of this Agreement, with only the Sponsor affiliated with fee amounts, pricing terms, pricing caps, “market flex” provisions and other commercially sensitive terms redacted; provided that Buyer represents and warrants that the redacted provisions in such Purchaser is fee letter do not subject permit the imposition of any new conditions (or the modification or expansion of any existing conditions or adversely affect the amount, availability or conditionality of the Financing), and (ii) customary engagement letters or non-disclosure agreements which do not impose any new conditions, modify or expand any existing conditions or impact the conditionality, availability or amount of the Financing) and would not reasonably be expected to bankruptcy proceedingsprevent, impair or delay the consummation of the Financing or (iii) those that would not be reasonably expected to adversely affect the availability of any portion of the Financing and which do not impose any new conditions, modify or expand any existing conditions or otherwise adversely impact the conditionality, availability or amount of the Financing. (cd) On the Closing Date, assuming the Closing is consummated in accordance with the terms of this Agreement following satisfaction of the conditions precedent thereto, Buyer will have, taking into account the aggregate proceeds of the Financing, available cash that is sufficient to (i) pay the amounts payable by Buyer pursuant to Article 2 and (ii) pay all related fees and expenses of Buyer and its Representatives pursuant to this Agreement. (e) Notwithstanding anything in this Section 3.2.6., Xxxxx affirms that it is not a condition to the contrary contained herein, in no event shall Closing or to any of its other obligations under this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result Agreement that Buyer obtain financing for any of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise required to do so under the terms and conditions of transactions contemplated by this Agreement.

Financial Capacity. (a) Taking into account the Financing Commitment, such Purchaser has, and at the Closing Buyer will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant have access to, and subject will have available on the Closing Date, capital in an amount that is sufficient to pay the terms of, Closing Consideration Amount and all other amounts payable by Buyer under Article II as required by and in accordance with this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser Buyer has delivered to the Seller a true, complete and correct and complete copy copies, including all exhibits, schedules or amendments thereto, of the Commitment Letter provided by its affiliated Sponsorfully executed commitment letter, dated on or about the date hereof, among Bank of America, N.A., BNP Paribas Fortis SA/NV and Mizuho Bank, Ltd. (collectively, the “Lender Parties”), Buyer, Bayer World Investment B.V., - 48 - and the other parties thereto, attached hereto as Exhibit J (the “Debt Commitments”), pursuant to which the Lender Parties have committed, upon the terms and subject to the conditions set forth therein, to lend the amounts set forth in the Debt Commitments (the “Debt Financing”). (c) None of the Debt Commitments have been amended or modified prior to the date hereof, and, as of the date hereof. Such Commitment Letter has not been amended or modified, and the respective commitments contained in such Commitment Letter the Debt Commitments have not been withdrawn, terminated or rescindedrescinded in any respect. Such Commitment Letter Except for (i) the Debt Commitments (and any fee letter related thereto), there are no other agreements, side letters or arrangements to which Buyer is a party that could affect the availability of the Debt Financing. The Debt Commitments are in full force and effect, (ii) constitutes effect and constitute the legal, legally valid and binding obligation obligations of such Purchaser and the Sponsor party theretoBuyer, and (iii) is enforceable by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, each subject to bankruptcy, insolvency, reorganization the reservations and other Legal Requirements qualifications as to matters of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related law set forth in Schedule 5 (Reservations) of the facility agreement scheduled to the funding or investingDebt Commitments, as applicableand, to the Knowledge of Buyer, the applicable Financing Commitment other than such Commitment Letterparties thereto. There are no conditions precedent or other contractual contingencies between Buyer and any other party to the consummation Debt Commitments related to the funding of such Financing Commitment the full amount of the Debt Financing, other than those as expressly set forth in such Commitment Letterthe Debt Commitments. As of the date of this Agreement, assuming the Sponsor affiliated with accuracy of the representations and warranties set forth in Article III such Purchaser is not subject to bankruptcy proceedings. (c) Notwithstanding anything to that the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result 7.3(a) is satisfied, and assuming the performance by Seller of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations under this Agreement, the proceeds to be disbursed pursuant to the agreements contemplated by the Debt Commitments, and Xxxxx’s other available capital, will be sufficient for Buyer to pay the Closing Consideration Amount at the Closing if and when it all other amounts payable by Buyer under Article II as required by and in accordance with this Agreement. As of the date hereof, no event has occurred which would result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would become a default) by Buyer under the Debt Commitments, and assuming the accuracy of the representations and warranties set forth in Article III such that the condition set forth in Section 7.3(a) is otherwise satisfied, and assuming the performance by Seller of its obligations under this Agreement, Buyer does not have any reason to believe that any of the conditions to the Debt Commitments will not be satisfied or that the Debt Financing will not be available to Buyer on the Closing Date. Buyer has fully paid all commitment fees and other fees required to do so under be paid on or prior to the terms and conditions of this Agreementdate hereof pursuant to the Debt Commitments.

Financial Capacity. (a) Taking into account the Financing Commitment, such Purchaser has, and at the Closing will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser Parent has delivered to the Seller Company a true, correct and complete copy of the executed Equity Commitment Letter provided by its affiliated Sponsordated the date hereof from Guarantor, dated as pursuant to which Guarantor has committed to invest in Parent, subject to the terms and conditions therein, on the Closing Date the Equity Financing. As of the date hereof. Such , the Equity Commitment Letter has not been amended amended, restated, supplemented or modifiedmodified in any respect or waived and no such amendment, restatement, supplement, modification or waiver is contemplated, and the respective obligations and commitments contained in such the Equity Commitment Letter have not been withdrawn, reduced, rescinded, amended, restated, otherwise modified or repudiated in any respect or terminated in any respect prior to the date of this Agreement and no such withdrawal, reduction, rescission, amendment, restatement, other modification, repudiation or rescindedtermination is contemplated. Such As of the date hereof, other than as expressly set forth in the Equity Commitment Letter there are no engagement letters, side letters, contracts, understandings, agreements or other commitments or arrangements of any kind, whether written or oral, relating to the financing of the Transactions, that could affect the conditionality, enforceability, availability, termination or amount of the Equity Financing. Assuming the accuracy of the representations and warranties of the Company set forth in this Agreement and the performance in all material respects by the Company of its obligations under this Agreement, the aggregate proceeds of the Equity Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and charges) assuming funded in accordance with the Equity Commitment Letter, will be sufficient to (i) fund all of the amounts required to be provided by Parent and/or Merger Sub for the consummation of the Transactions and (ii) perform all of Parent’s and Mexxxx Xub’s payment obligations under Article III, the payment of all amounts in connection with the refinancing or repayment of any outstanding indebtedness of the Acquired Companies required by this Agreement and the payment of all associated costs and expenses of the Transactions (including any fees and expenses related to the transactions contemplated hereby, including the Equity Financing). The Equity Commitment Letter, in the form so delivered to the Company, is in full force and effect, (ii) constitutes the effect and constitute legal, valid valid, binding and binding enforceable obligations of Parent and each other party thereto (subject to the Enforceability Exceptions) to provide the financing contemplated thereby subject only to the satisfaction or waiver of the terms thereof. Parent has fully paid (or caused to be paid) any and all commitment fees and other amounts required by the Equity Commitment Letter and/or the Equity Financing, in each case, that are due and payable on or prior to the date of this Agreement, and will pay (or cause to be paid) in full all commitment fees and other amounts required by the Equity Commitment Letter and/or the Equity Financing, in each case, that are due and payable at or prior to Closing. Neither Parent nor Merger Sub, nor any other party to the Equity Commitment Letter, is in default in the performance, observation or fulfillment of any obligation, covenant or condition contained in the Equity Commitment Letter, and no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute or result in a default under or breach on the part of Parent or Merger Sub, or on the part of any other party under the Equity Commitment Letter. Assuming the satisfaction or waiver of the conditions to the Parent Parties’ obligation of such Purchaser to consummate the Merger and the Sponsor accuracy of the representations and warranties of the Company set forth in Article IV hereof, neither Parent nor Merger Sub has any reason to believe that it or any other party theretothereto will be unable to satisfy on a timely basis, and (iii) is enforceable in any event, not later than the Closing, any term or condition of the Equity Commitment Letter required to be satisfied by it or that the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related full amounts committed pursuant to the funding Equity Commitment Letter will not be available on the Closing Date if the terms or investing, as applicable, of conditions to be satisfied by it contained in the applicable Financing Equity Commitment other than such Commitment LetterLetter are satisfied. There are no conditions precedent or other contingencies related to the consummation funding or investing of such the full net proceeds (or any portion) of the Equity Financing Commitment at the Closing other than those as set forth in such the Equity Commitment Letter. As of Parent and Mexxxx Xub expressly agree and acknowledge that their obligations hereunder, including Paxxxx’s and Mexxxx Xub’s obligations to consummate the date of this AgreementMerger, the Sponsor affiliated with such Purchaser is are not subject to bankruptcy proceedingsto, or conditioned on, Parent’s or Merger Sub’s receipt of financing. (c) Notwithstanding anything to the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise required to do so under the terms and conditions of this Agreement.

Financial Capacity. Assuming (a) Taking into account that the Financing Commitmentparties to the Debt Commitment Letter (other than Buyer) perform their obligations in accordance with the terms thereof and (b) satisfaction of the conditions precedent to Buyer’s obligations hereunder, such Purchaser has, and Buyer shall have at the Closing will havesufficient cash, sufficient resources available lines of credit or other sources of immediately available funds to pay, in cash any and make payment of all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser it hereunder without any restrictions to transfer such funds at on and after the Closing Date. Buyer has provided to the Seller Company a true and complete copy of the Companyfully executed commitment letter, dated as of September 18, 2017, between the Financing Sources party thereto and Buyer (and including any lenders who become party thereto by joinder in accordance with the terms of such debt commitment letter, together with all exhibits, schedules, annexes and, to the extent required otherwise in accordance with the terms hereof, supplements and amendments thereto, the “Debt Commitment Letter”), pursuant to be paid pursuant to, which the Financing Sources party thereto agreed to lend the amounts set forth therein on the terms and subject to the terms of, conditions set forth therein (together with any Alternate Financing) for the purpose of funding the transactions contemplated by this Agreement. The Sponsor affiliated with such Purchaser hasDebt Commitment Letter has not been amended or modified in a manner that could affect the satisfaction of the conditions set forth in Section 8.4 hereof, and at as of the Closing will have, sufficient resources to meet its obligations under its date of this Agreement the commitments contained in the Debt Commitment Letter as they become due. (b) have not been withdrawn or rescinded in any respect. As of the date of this Agreement, such Purchaser has delivered to the Seller a true, correct and complete copy of the Debt Commitment Letter provided by its affiliated Sponsor, dated as of the date hereof. Such Commitment Letter has not been amended or modified, and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effect, (ii) effect and constitutes the legal, valid and binding obligation of such Purchaser and Buyer and, to Buyer’s knowledge, each of the Sponsor party other parties thereto, and (iii) is enforceable except as may be limited by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and any other Legal Requirements Laws of general applicability relating to or affecting creditors’ rights (including fraudulent conveyance laws) and to by general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicable, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent or other contingencies related to the consummation funding of such Financing Commitment the full amount of the Financing, other than those as expressly set forth in such the Debt Commitment Letter. As Letter (including satisfaction of the date of this Agreement, the Sponsor affiliated with such Purchaser is not subject to bankruptcy proceedings. (c) Notwithstanding anything Marketing Period and changes effected pursuant to the contrary contained herein“market flex” provisions in the associated fee letter). Assuming the satisfaction of the conditions precedent to Buyer’s obligations hereunder, in Buyer has no event shall this Section 4.4 reason to believe that it will not be deemed breached (and no able to satisfy any term or condition set forth in Section 6.3 shall of closing of the Financing that is required to be deemed to have failed satisfied as a result of any actual condition to the Financing, or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able that the Financing will not be made available to consummate its obligations at Buyer on the Closing if and when it is otherwise required to do so under the terms and conditions of this AgreementDate.

Financial Capacity. (a) Taking into account Buyer or the Financing Commitment, such Purchaser Guarantor (i) has, and at the Closing will have, sufficient resources to paycash, available lines of credit or other sources of immediately available funds (including funds deposited in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (escrow pursuant to the extent payable hereunderEscrow Agreement) available to pay the Closing Payment and all any expenses incurred by Buyer and its Representatives in connection with the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the CompanyContemplated Transactions, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser (ii) has, and at the Closing will have, sufficient the resources and capabilities (financial or otherwise) to meet perform its obligations under its Commitment Letter as they become duehereunder, and (iii) has not incurred any Losses of any kind, which would impair or adversely affect such resources and capabilities. (b) As Xxxxx acknowledges and agrees that it is not a condition to the Closing or to any of the date of other obligations under this Agreement, such Purchaser Agreement or the other Transaction Documents that Buyer obtain financing for or relating to the Contemplated Transactions. (c) Xxxxx has delivered to the Seller a true, correct and complete copy duly executed guaranty by Sofidel S.p.A. (the “Guarantor”) in favor of the Commitment Letter provided by its affiliated SponsorSeller, dated as of the even date hereof. Such Commitment Letter has not been amended or modifiedherewith, which provides for an unconditional guaranty of all performance and payment obligations of Buyer under this Agreement and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescindedother Transaction Documents (the “Buyer Guaranty”). Such Commitment Letter (i) The Buyer Guaranty is in full force and effect, (ii) constitutes the a legal, valid and binding obligation of such Purchaser the Guarantor, is in full force and effect and is enforceable in accordance with the terms thereof against the Guarantor. The Buyer Guaranty has not been amended or modified (and no waiver of any provision thereof has been granted), and the Sponsor party theretoobligations and commitments contained in the Buyer Guaranty have not been withdrawn or rescinded in any respect and no event has occurred that would result in any breach or violation of, and (iii) or constitute a default under, the Buyer Guaranty. Seller is enforceable by entitled to enforce, directly or indirectly, the Seller and the Company against such Purchaser and the Sponsor party thereto, Buyer Guaranty in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to terms against the funding or investing, as applicable, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment Letter. As of the date of this Agreement, the Sponsor affiliated with such Purchaser is not subject to bankruptcy proceedingsGuarantor. (c) Notwithstanding anything to the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise required to do so under the terms and conditions of this Agreement.

Financial Capacity. (a) Taking into account Buyer has the Financing Commitmentfinancial capability and access to and/or sufficient debt commitments and/or immediately available funds (including, such Purchaser hasfor purposes of this Section 5.5(a), and at the Closing will havecash on hand, sufficient resources to payavailability under revolving credit agreements, in cash any and all amounts term loans, accounts receivable securitization facilities or other similar facilities) necessary for it to consummate the transactions contemplated hereby hereby, including the making of all payments to be made by or on behalf of Buyer on the Closing Date (including payment in cash of the Final Purchase Price in accordance with the terms of Article II, and for all other actions necessary for Buyer to consummate the transactions contemplated in this Agreement and the other Transaction Documents to which it is or will at the Closing, including payment of Closing be a party and perform its Pro Rata Share of the Seller Purchase Price obligations hereunder and the Company Purchase Price, and in the case of Purchaser A onlythereunder) (such necessary amount, the Additional Company Purchase Price and “Required Amount”). Buyer does not know of any circumstance or condition that would reasonably be expected to prevent or substantially delay the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required ability of such funds or otherwise impair such capability at Closing. No funds to be paid to Seller have been derived from or will have been derived from, or constitute, either directly or indirectly, the proceeds of any criminal activity under the anti-money laundering Laws of the United States. Buyer understands and acknowledges that under the terms of this Agreement, Buyer’s obligation to consummate the transactions contemplated by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller this Agreement and the Company, as and other Transaction Documents to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and which it is or will at the Closing will havebe a party is not in any way contingent upon or otherwise subject to Buyer’s consummation of any financing arrangements (including the Bridge Financing or any other Debt Financing), sufficient resources Buyer’s obtaining of any financing (including the Bridge Financing, any Replacement Financing or any other Debt Financing) or the availability, grant, provision or extension of any financing (including the Bridge Financing or any other Debt Financing) to meet its obligations under its Commitment Letter as they become dueBuyer. (b) As of Concurrently with the date execution of this Agreement, such Purchaser Buyer has delivered to Seller the Seller a trueduly executed Buyer Parent Guaranty. The Buyer Parent Guaranty is in full force and effect, correct and complete copy of the Commitment Letter provided by its affiliated Sponsor, dated as of the date hereof. Such Commitment Letter has not been amended or modified, and is a legal, valid, binding and enforceable obligation of Buyer and Buyer Parent, subject to the respective commitments Remedies Exception. No event has occurred which (with or without notice, lapse of time or both) would constitute a breach, violation or default on the part of, or permit termination, modification or acceleration by, Buyer or Buyer Parent under the Buyer Parent Guaranty. (c) Concurrently with the execution of this Agreement, Buyer has delivered to Seller a true and complete copy of the executed Bridge Commitment Letter and the Bridge Fee Letter, which Bridge Fee Letter has been redacted in a customary manner to remove only those items related to fee amounts, pricing caps, specific “market flex” provisions and other economic terms set forth therein. As of the date of this Agreement: (i) the Bridge Commitment Letter is in full force and effect and represents a valid, binding and enforceable obligation of Buyer and, to the Knowledge of Buyer, each other party thereto to provide the financing contemplated thereby subject only to the satisfaction or waiver of the Bridge Financing Conditions, subject to the Remedies Exception; (ii) the Bridge Commitment Letter has not been amended, supplemented or modified in any manner (provided that the existence of “market flex” provisions contained in such the Bridge Fee Letter shall not be deemed to constitute a modification, supplement or amendment of the Bridge Commitment Letter); (iii) the commitments under the Bridge Commitment Letter have not been withdrawn, terminated rescinded, replaced or rescinded. Such terminated; (iv) no event has occurred which, with or without notice, lapse of time or both, would constitute a material breach or default on the part of Buyer or, to the Knowledge of Buyer, any other party under the Bridge Commitment Letter; (v) Buyer has fully paid (or caused to be paid) any and all commitment fees and other amounts that are due and payable on or prior to the date of this Agreement in connection with the Bridge Financing; and (vi) neither Buyer nor any of its Affiliates has entered into any agreement, side letter or other arrangement relating to the Bridge Financing that would result in a modification of the Bridge Commitment Letter (i) is in full force and effect, (ii) constitutes the legal, valid and binding obligation of such Purchaser and the Sponsor party thereto, and (iii) is enforceable prohibited by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicable, of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment LetterSection 6.16(b). As of the date of this Agreement, there are no conditions precedent or other contingencies related to the Sponsor affiliated with such Purchaser funding of the full amount of the Bridge Financing, other than the Bridge Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Sections 7.1 and 7.3, Buyer has no reason to believe that it will be unable to satisfy any of the Bridge Financing Conditions on or prior to Closing or that the Bridge Financing will not be made available to Buyer on the Closing Date (except to the extent the Bridge Commitment Letter is not subject terminated as permitted under Section 6.16(b)). The Bridge Commitment Letter provides that the only conditions precedent or other contingencies related to bankruptcy proceedings. (c) the funding of the Bridge Financing are the Bridge Financing Conditions. Notwithstanding anything to the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as Seller agrees that a result of any actual or alleged breach of this Section 4.4)5.5(c) will not result in the failure of a condition precedent to Seller’s obligations under this Agreement, if (notwithstanding any actual or alleged such breach), such Purchaser Buyer is willing and able to consummate its obligations at the transactions contemplated in this Agreement and the other Transaction Documents on the Closing Date. For the avoidance of doubt, if the Bridge Commitment Letter is terminated as permitted under Section 6.16(b), the representations and when it is otherwise required warranties set forth in this Section 5.5(c) will cease to do so under the terms be of force and conditions of this Agreementeffect.

Financial Capacity. (a) Taking into account the Financing Commitment, such Purchaser hasBuyer is, and at Closing shall be, financially capable to pay the Closing will havePurchase Price, sufficient resources to pay, in cash make any and all amounts other necessary for it payment contemplated by this Agreement or any of the Ancillary Agreements to consummate the transactions contemplated hereby be made at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required in connection with the consummation of the Transactions, and to perform all of their obligations contemplated by this Agreement and the Ancillary Agreements to be paid by such Purchaser hereunder without any restrictions to transfer such funds performed at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become dueClosing. (b) As of the date of this Agreement, such Purchaser Xxxxx has delivered to the Seller a true, correct and complete copy of the fully executed Debt Commitment Letter provided by its affiliated Sponsorpursuant to which, dated and on the terms and subject only to the conditions expressly stated therein, the Debt Financing Sources have confirmed their existing undrawn debt financing commitments to the Buyer in the amounts set forth therein, which commitments are available to the Buyer as of the date thereof and will be available to the Buyer as of the Closing Date, in each case, for the purpose of financing the transactions contemplated by this Agreement. As of the date hereof. Such , the Debt Commitment Letter has not been amended or modified, and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effect, (ii) constitutes the legalhas not been withdrawn, valid repudiated, rescinded or terminated and binding obligation of such Purchaser and the Sponsor party theretono waiver or consent has been granted thereunder or otherwise amended or modified in any respect, and (iii) no such amendment, modification, waiver or consent is enforceable by contemplated. As of the Seller date hereof, Buyer is not in breach of any of the terms or conditions set forth in the Debt Commitment Letter, and as of the Company against such Purchaser and date hereof no event has occurred which, with or without notice, lapse of time or both, would constitute a failure of any condition of the Sponsor party theretoDebt Commitment Letter or result in any portion of the Debt Financing being unavailable on the Closing or a breach, default or failure to satisfy any condition precedent set forth therein, in accordance with its termseach case, subject to bankruptcy, insolvency, reorganization and other Legal Requirements on the part of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicable, of the applicable Financing Commitment other than such Commitment LetterBuyer. There are no conditions precedent or other contingencies related to the consummation funding of such the full amount of the Debt Financing Commitment other than those as expressly set forth in such the Debt Commitment Letter. As of the date of this Agreement, the Sponsor affiliated with such Purchaser is not subject to bankruptcy proceedings. (c) Notwithstanding anything to the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as Xxxxxx agrees that a result of any actual or alleged breach of this Section 4.4)representation and warranty will not result in the failure of a condition precedent to Seller’s obligations under this Agreement, if (notwithstanding any actual or alleged such breach), such Purchaser ) Buyer is willing and able to consummate its obligations at the Transactions on the Closing if and when it is otherwise required to do so under the terms and conditions of this AgreementDate.

Financial Capacity. (a) Taking into account the Financing Commitment, such Purchaser has, and at the Closing Buyer will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant have access to, and subject will have available on the Closing Date, capital in an amount that is sufficient to pay the terms of, Closing Consideration Amount and all other amounts payable by Buyer under Article II as required by and in accordance with this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser Buyer has delivered to the Seller a true, complete and correct and complete copy copies, including all exhibits, schedules or amendments thereto, of the Commitment Letter provided by its affiliated Sponsorfully executed commitment letter, dated on or about the date hereof, among Bank of America, N.A., BNP Paribas Fortis SA/NV and Mizuho Bank, Ltd. (collectively, the “Lender Parties”), Buyer, Bayer World Investment B.V., - 48 - and the other parties thereto, attached hereto as Exhibit J (the “Debt Commitments”), pursuant to which the Lender Parties have committed, upon the terms and subject to the conditions set forth therein, to lend the amounts set forth in the Debt Commitments (the “Debt Financing”). (c) None of the Debt Commitments have been amended or modified prior to the date hereof, and, as of the date hereof. Such Commitment Letter has not been amended or modified, and the respective commitments contained in such Commitment Letter the Debt Commitments have not been withdrawn, terminated or rescindedrescinded in any respect. Such Commitment Letter Except for (i) the Debt Commitments (and any fee letter related thereto), there are no other agreements, side letters or arrangements to which Buyer is a party that could affect the availability of the Debt Financing. The Debt Commitments are in full force and effect, (ii) constitutes effect and constitute the legal, legally valid and binding obligation obligations of such Purchaser and the Sponsor party theretoBuyer, and (iii) is enforceable by the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, each subject to bankruptcy, insolvency, reorganization the reservations and other Legal Requirements qualifications as to matters of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related law set forth in Schedule 5 (Reservations) of the facility agreement scheduled to the funding or investingDebt Commitments, as applicableand, to the Knowledge of Buyer, the applicable Financing Commitment other than such Commitment Letterparties thereto. There are no conditions precedent or other contractual contingencies between Buyer and any other party to the consummation Debt Commitments related to the funding of such Financing Commitment the full amount of the Debt Financing, other than those as expressly set forth in such Commitment Letterthe Debt Commitments. As of the date of this Agreement, assuming the Sponsor affiliated with accuracy of the representations and warranties set forth in Article III such Purchaser is not subject to bankruptcy proceedings. (c) Notwithstanding anything to that the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result 7.3(a) is satisfied, and assuming the performance by Seller of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations under this Agreement, the proceeds to be disbursed pursuant to the agreements contemplated by the Debt Commitments, and Buyer’s other available capital, will be sufficient for Buyer to pay the Closing Consideration Amount at the Closing if and when it all other amounts payable by Buyer under Article II as required by and in accordance with this Agreement. As of the date hereof, no event has occurred which would result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would become a default) by Buyer under the Debt Commitments, and assuming the accuracy of the representations and warranties set forth in Article III such that the condition set forth in Section 7.3(a) is otherwise satisfied, and assuming the performance by Seller of its obligations under this Agreement, Buyer does not have any reason to believe that any of the conditions to the Debt Commitments will not be satisfied or that the Debt Financing will not be available to Buyer on the Closing Date. Buyer has fully paid all commitment fees and other fees required to do so under be paid on or prior to the terms and conditions of this Agreementdate hereof pursuant to the Debt Commitments.

Financial Capacity. (a) Taking into account Parent has delivered to the Financing Commitment, such Purchaser has, Company complete and at the Closing will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share correct copy of the Seller Purchase Price and executed Equity Commitment Letter dated the Company Purchase Pricedate hereof from Guarantor, and pursuant to which Guarantor has committed to invest in the case of Purchaser A onlyParent, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms ofand conditions therein, this Agreement. The Sponsor affiliated with such Purchaser has, and at on the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) Date the Equity Financing. As of the date of this Agreementhereof, such Purchaser has delivered to the Seller a true, correct and complete copy of the Commitment Letter provided by its affiliated Sponsor, dated as of the date hereof. Such Equity Commitment Letter has not been amended amended, restated, supplemented or modifiedmodified in any respect or waived and no such amendment, restatement, supplement, modification or waiver is contemplated, and the respective obligations and commitments contained in such the Equity Commitment Letter have not been withdrawn, reduced, rescinded, amended, restated, otherwise modified or repudiated in any respect or terminated in any respect prior to the date of this Agreement and no such withdrawal, reduction, rescission, amendment, restatement, other modification, repudiation or rescindedtermination is contemplated. Such As of the date hereof, other than as expressly set forth in the Equity Commitment Letter there are no engagement letters, side letters, contracts, understandings, agreements or other commitments or arrangements of any kind, whether written or oral, relating to the financing of the Transactions, that could affect the conditionality, enforceability, availability, termination or amount of the Equity Financing. Assuming the accuracy of the representations and warranties of the Company and the Partnership set forth in this Agreement and the performance in all material respects by the Company of its obligations under this Agreement, the aggregate proceeds of the Equity Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and charges) assuming funded in accordance with the Equity Commitment Letter, will be sufficient to (i) fund all of the amounts required to be provided by Parent, Merger Sub I and/or Merger Sub II for the consummation of the Transactions and (ii) perform all of Parent’s, Merger Sub I’s and Merger Sub II’s payment obligations under Article III, the payment of all amounts in connection with the refinancing or repayment of any outstanding indebtedness of the Acquired Companies required by this Agreement and the payment of all associated costs and expenses of the Transactions (including any fees and expenses related to the transactions contemplated hereby, including the Equity Financing). The Equity Commitment Letter, in the form so delivered to the Company, is in full force and effect, (ii) constitutes the effect and constitute legal, valid valid, binding and binding enforceable obligations of Parent and each other party thereto (subject to the Enforceability Exceptions) to provide the financing contemplated thereby subject only to the satisfaction or waiver of the terms thereof. Parent has fully paid (or caused to be paid) any and all commitment fees and other amounts required by the Equity Commitment Letter and/or the Equity Financing, in each case, that are due and payable on or prior to the date of this Agreement, and will pay (or cause to be paid) in full all commitment fees and other amounts required by the Equity Commitment Letter and/or the Equity Financing, in each case, that are due and payable at or prior to Closing. Neither Parent, Merger Sub I nor Merger Sub II, nor any other party to the Equity Commitment Letter, is in default in the performance, observation or fulfillment of any obligation, covenant or condition contained in the Equity Commitment Letter, and no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute or result in a default under or breach on the part of Parent, Merger Sub I or Merger Sub II, or on the part of any other party under the Equity Commitment Letter. Assuming the satisfaction or waiver of the conditions to the Parent Parties’ obligation of such Purchaser to consummate the Mergers and the Sponsor accuracy of the representations and warranties of the Company and the Partnership set forth in Article IV hereof, neither Parent, Merger Sub I nor Merger Sub II has any reason to believe that it or any other party theretothereto will be unable to satisfy on a timely basis, and (iii) is enforceable in any event, not later than the Closing, any term or condition of the Equity Commitment Letter required to be satisfied by it or that the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related full amounts committed pursuant to the funding Equity Commitment Letter will not be available on the Closing Date if the terms or investing, as applicable, of conditions to be satisfied by it contained in the applicable Financing Equity Commitment other than such Commitment LetterLetter are satisfied. There are no conditions precedent or other contingencies related to the consummation funding or investing of such the full net proceeds (or any portion) of the Equity Financing Commitment at the Closing other than those as set forth in such the Equity Commitment Letter. As of Parent, Xxxxxx Sub I and Merger Sub II expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s Merger Sub I’s and Merger Sub II’s obligations to consummate the date of this AgreementMergers, the Sponsor affiliated with such Purchaser is are not subject to bankruptcy proceedingsto, or conditioned on, Parent’s, Merger Sub I’s or Merger Sub II’s receipt of financing. (c) Notwithstanding anything to the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result of any actual or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise required to do so under the terms and conditions of this Agreement.

Financial Capacity. (a) Taking into account Buyer has delivered to Seller a true, accurate and complete copy of the Financing CommitmentCommitment Letter by Deerfield pursuant to which Deerfield has agreed to lend the amounts set forth therein on the terms and subject only to the conditions set forth therein, such Purchaser has, and at for the Closing will have, sufficient resources to pay, in cash any and all amounts necessary for it to consummate purpose of funding the transactions contemplated hereby at by this Agreement (the Closing, including payment of its Pro Rata Share of financing contemplated by the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A onlyCommitment Letter, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement“Debt Financing”). The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser has delivered to the Seller a true, correct and complete copy of (a) the Commitment Letter provided by its affiliated Sponsoris in full force and effect and constitutes legal, dated as valid and binding obligations of Nuvo and, to the date hereof. Such knowledge of Nuvo, Deerfield, (b) the Commitment Letter has not been amended or modified, modified and the respective commitments contained in no such Commitment Letter have not been withdrawn, terminated amendment or rescinded. Such Commitment Letter (i) modification is in full force and effect, (ii) constitutes the legal, valid and binding obligation of such Purchaser and the Sponsor party theretocontemplated by Nuvo, and (iiic) is enforceable assuming the satisfaction of the conditions set forth therein, the Debt Financing will be sufficient to pay the Purchase Price and any other amounts to be paid or repaid by Buyer under this Agreement or as a result of the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principlestransactions contemplated by this Agreement. There are no conditions precedent related to the funding of the full amount of the Debt Financing other than as expressly set forth in the Commitment Letter; and there are no side letters or other Contracts contracts, understandings or arrangements (oral or written) related to the funding or investing, as applicable, of the applicable Debt Financing Commitment between Nuvo and Deerfield other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment Letter. As of the date of this Agreement, to Buyers knowledge and excluding any conditions where the Sponsor affiliated with such Purchaser failure to be so satisfied is not subject to bankruptcy proceedings. (c) Notwithstanding anything to the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result of any actual or alleged Seller’s breach of any of its obligations under this Section 4.4Agreement or a breach by Deerfield, no event has occurred that (with or without notice or lapse of time or both) would reasonably be expected to constitute or result in a breach or default under the Commitment Letter or make Nuvo unable to satisfy on a timely basis any term or condition of the Commitment Letter (whether or not such condition is contained in the Commitment Letter), if (notwithstanding and Buyer is not aware of any actual fact or alleged breach), such Purchaser is willing and able occurrence that makes any of the representations or warranties of Nuvo relating to consummate its obligations at Nuvo in the Closing if and when it is otherwise required Commitment Letter inaccurate in any material respect. Subject to do so under the terms and conditions of this Agreementthe Commitment Letter and subject to the satisfaction of the conditions contained in Section 6.1 and Section 6.2, (x) Buyer does not have any reason to believe that Nuvo will be unable to satisfy on a timely basis any term or condition to be satisfied by it and contained in the Commitment Letter, and (y) the aggregate proceeds contemplated by the Commitment Letter will be sufficient for Buyer to consummate the transactions contemplated hereby upon the terms and conditions contemplated hereby and pay all related fees and expenses related thereto.

Financial Capacity. (a) Taking into account At or prior to the Financing CommitmentClosing, such Purchaser has, and at the Closing Buyer will have, pursuant to the Commitment Letters and/or any Substitute Financing, sufficient resources cash, available lines of credit or other sources of immediately available funds to pay, pay in cash the Merger Consideration in accordance with the terms of Article III and any and all other amounts necessary for it to consummate the transactions contemplated hereby at the Closing, including payment of its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without any restrictions to transfer such funds at Closing to the Seller and the Company, it hereunder. Attached hereto as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreement. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser has delivered to the Seller a Exhibit B are true, correct and complete copy signed counterpart(s) of (i) the Commitment Letter provided by its affiliated Sponsorcommitment letter(s), dated as of the date hereof. Such , providing for debt financing in respect of the transactions contemplated by this Agreement (the “Debt Commitment Letter has not been amended or modified, Letters”) and the respective commitments contained in such Commitment Letter have not been withdrawn, terminated or rescinded. Such Commitment Letter (i) is in full force and effect, (ii) constitutes the legalcommitment letter(s), valid dated as of the date hereof, pursuant to which Affiliates of Buyer have agreed with Buyer to make an equity investment in Buyer (the “Equity Commitment Letters” and binding obligation of such Purchaser and together with the Sponsor party theretoDebt Commitment Letters, and (iii) is enforceable the “Commitment Letters”), which debt financing contemplated by the Seller and Debt Commitment Letters, when taken together with the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject amount of equity capital to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related be provided pursuant to the funding or investingEquity Commitment Letters, as applicablewill be sufficient to pay the Merger Consideration, all other amounts to be paid by Buyer hereunder and all expenses of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to Buyer incurred in connection with the consummation of such Financing Commitment other than those set forth in such Commitment Letterthe transactions contemplated hereby. As of the date of this Agreementhereof, the Sponsor affiliated with Commitment Letters, in the form so delivered, are valid and binding obligations of Buyer or Merger Sub and, to the Knowledge of Buyer, the other parties thereto and (assuming that such Purchaser is Commitment Letters constitute such obligations of such other parties) are in full force and effect and are not subject to bankruptcy proceedings. (c) Notwithstanding anything to the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition any contingencies or conditions that are not set forth in Section 6.3 shall be deemed the copies of the Commitment Letters attached hereto as Exhibit B, except for the payment of customary fees. Other than the Commitment Letters, Buyer has not entered into any agreement pursuant to have failed as a result of which any actual Person (other than the Parties thereto) has the right to modify or alleged breach of this Section 4.4), if (notwithstanding any actual or alleged breach), such Purchaser is willing and able to consummate its obligations at the Closing if and when it is otherwise required to do so under amend the terms of the Commitment Letters. To Buyer’s Knowledge, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach under any term or condition of the Commitment Letters, or would result in a party thereto being unable to satisfy on a timely basis any term or condition of closing to be satisfied pursuant to the Commitment Letters. Buyer or an Affiliate thereof on its behalf has fully paid any and conditions of this Agreementall commitment or other fees required by the Debt Commitment Letters to be paid by the date hereof.

Financial Capacity. (a) Taking into account the Financing CommitmentBuyer acknowledges and agrees that its obligations under this Agreement, such Purchaser has, and at the Closing will have, sufficient resources to pay, in cash any and all amounts necessary for it including its obligation to consummate the transactions contemplated hereby at the Closinghereby, including payment of are not contingent upon its Pro Rata Share of the Seller Purchase Price and the Company Purchase Price, and in the case of Purchaser A only, the Additional Company Purchase Price and the Election Purchase Price (ability to the extent payable hereunder) and all the fees and expenses expressly required to be paid by such Purchaser hereunder without obtain any restrictions to transfer such funds at Closing to the Seller and the Company, as and to the extent required to be paid pursuant to, and subject to the terms of, this Agreementfinancing. The Sponsor affiliated with such Purchaser has, and at the Closing will have, sufficient resources to meet its obligations under its Commitment Letter as they become due. (b) As of the date of this Agreement, such Purchaser Buyer has delivered to the Seller Sellers a true, correct correct, and complete copy of the executed Equity Commitment Letter provided by its affiliated Sponsorto provide to Buyer, dated as subject to the terms and conditions therein, cash in the aggregate amount set forth therein to satisfy the payment of the date hereofPurchase Price and Buyer’s other obligations hereunder (the “Financing”). Such The Equity Commitment Letter has not been amended or modifiedmodified prior to the date hereof, and no such amendment or modification is contemplated as of the date hereof, and the respective commitments contained in such the Equity Commitment Letter have not been withdrawnwithdrawn or rescinded in any respect as of the date hereof (and, terminated to the knowledge of Buyer, no such withdrawal or rescindedrescission is contemplated as of the date hereof). Such The Equity Commitment Letter (i) is not subject to any conditions precedent or other contingencies relating to the funding of the full amount of the Financing other than as set forth in the Equity Commitment Letter delivered to Sellers, and are binding and in full force and effect, (ii) constitutes effect and are the legal, valid (assuming due authorization, execution and delivery by the other parties thereto), binding obligation and enforceable obligations of Buyer and, to the knowledge of Buyer, each of the other parties thereto, as the case may be, in each case except as such Purchaser enforceability may be limited by applicable bankruptcy, insolvency and other similar Laws affecting the enforceability of creditors’ rights generally, general equitable principles and the Sponsor party theretodiscretion of courts in granting equitable remedies. Assuming the satisfaction of the conditions set forth in Article VIII and Article IX, the aggregate net proceeds contemplated by the Equity Commitment Letter, together with available funds of Buyer, will, in the aggregate, be sufficient for Buyer to complete the transactions contemplated by this Agreement, and to satisfy all of the obligations of Buyer under this Agreement, including (A) paying the Purchase Price at Closing, and (iiiB) is enforceable by paying all related fees and expenses of Buyer hereunder. Assuming the Seller and the Company against such Purchaser and the Sponsor party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no side letters or other Contracts related to the funding or investing, as applicable, satisfaction of the applicable Financing Commitment other than such Commitment Letter. There are no conditions precedent to the consummation of such Financing Commitment other than those set forth in such Commitment Letter. As Article VIII and Article IX, to the knowledge of Buyer, there exists no fact or occurrence existing on the date hereof that could (I) constitute a default or breach, of this Agreement, the Sponsor affiliated with such Purchaser is not subject to bankruptcy proceedings. (c) Notwithstanding anything to the contrary contained herein, in no event shall this Section 4.4 be deemed breached (and no condition set forth in Section 6.3 shall be deemed to have failed as a result failure of any actual condition, under the Equity Commitment Letter or alleged breach of this Section 4.4), if (notwithstanding any actual II) otherwise cause the Equity Commitment Letter to be ineffective or alleged breach), such Purchaser is willing and able the Financing to consummate its obligations at be unavailable on the Closing if and when it is otherwise required to do so under the terms and conditions of this AgreementDate.