Common use of Financing Capability Clause in Contracts

Financing Capability. As of the date hereof, Parent has delivered to the Company duly executed copies of the equity commitment letter, dated as of May 27, 2016 between Parent and Guarantor (the “Equity Financing Commitment”), pursuant to which such Person has committed to invest, subject solely to the terms and conditions set forth therein, the amount set forth therein (the “Equity Financing”). Assuming that (x) the conditions set forth in Section 8.1 have been satisfied, (y) the representations and warranties made by the Company are true and correct (without giving effect to any Material Adverse Effect or materiality qualifier or exception contained therein), and (z) the Company has performed and complied with all covenants and agreements required to be performed by it hereunder, the aggregate proceeds contemplated to be disbursed pursuant to the Equity Financing Commitment together with cash and cash equivalents available to Parent, will, in the aggregate, be sufficient for Parent to consummate the Merger, to pay the total Merger Consideration, to repay or refinance in full existing Indebtedness of the Company and its Subsidiaries in accordance with the Payoff Letters, and to pay the fees and expenses incurred in connection with the transactions contemplated hereby. As of the Agreement Date, the Equity Financing Commitment, in the form provided to the Company, is a legal, valid, binding and enforceable obligation of Parent and, to the knowledge of Parent, the other parties thereto, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law). As of the Agreement Date, the Equity Financing Commitment is in full force and effect and has not been amended, modified, withdrawn or rescinded in any respect. As of the Agreement Date, there are no conditions precedent or contingencies, whether oral or written, related to the funding of the full amount of the Equity Financing, other than as expressly set forth in the Equity Financing Commitment. As of the Agreement Date, 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 Parent under the Equity Financing Commitment, and, assuming the satisfaction of the conditions set forth in Sections 8.1 and 8.2, as of the Agreement Date, Parent 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 Parent on the Closing Date.

Financing Capability. (a) The Parent has entered into a sale-leaseback facility commitment letter with Drawbridge Special Opportunity Fund, LLC dated July 22, 2006 (“Drawbridge”) and the Parent and the Merger Subsidiary have entered into a debt financing commitment letter from Credit Suisse Securities (USA) LLC and UBS Securities LLC (together with Drawbridge, the “Lenders”) dated July 24, 2006 (the “Commitment Letters”) pursuant to which the sale-leaseback facility and debt financing sources identified therein have committed to provide to the Parent up to $1.5 billion in the aggregate (the “Financing”), subject to the terms and conditions therein and assuming that the conditions set forth in Sections 6.1 and 6.2 are satisfied as of the Closing. The Parent has delivered correct and complete copies of the Commitment Letters to the Company. As of the date hereof, Parent has delivered to the Company duly executed copies of the equity commitment letter, dated as of May 27, 2016 between Parent Commitment Letters (i) are in full force and Guarantor (the “Equity Financing Commitment”), pursuant to which such Person has committed to invest, subject solely to the terms and conditions set forth therein, the amount set forth therein (the “Equity Financing”). Assuming that (x) the conditions set forth in Section 8.1 have been satisfiedeffect, (yii) the representations and warranties made by the Company are true and correct (without giving effect to any Material Adverse Effect or materiality qualifier or exception contained therein), and (z) the Company has performed and complied with all covenants and agreements required to be performed by it hereunder, the aggregate proceeds contemplated to be disbursed pursuant to the Equity Financing Commitment together with cash and cash equivalents available to Parent, will, in the aggregate, be sufficient for Parent to consummate the Merger, to pay the total Merger Consideration, to repay or refinance in full existing Indebtedness of the Company and its Subsidiaries in accordance with the Payoff Letters, and to pay the fees and expenses incurred in connection with the transactions contemplated hereby. As of the Agreement Date, the Equity Financing Commitment, in the form provided to the Company, is a legal, valid, binding and enforceable obligation of against the Parent and, to the knowledge of Parent, each of the other parties theretothereto in accordance with their respective terms, subject to the effects of except that (A) such enforcement may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other moratorium, fraudulent transfer or similar laws Laws of general applicability relating to or affecting enforcement of creditors’ rights generally and general (B) the remedy of specific performance and injunctive and other forms of equitable principles relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and (whether considered iii) have not been amended or terminated in a proceeding in equity or at law)any manner adverse to the Company. As of the Agreement Datedate of this Agreement, the Equity Financing Parent does not believe that the Commitment is in full force and effect and has not been amended, modified, withdrawn Letters will be terminated or rescinded amended in any respectmaterial respect in a manner adverse to the Company. As of the Agreement Datedate of this Agreement, there are no conditions precedent the Lenders have not advised Parent, Merger Subsidiary or contingencies, whether oral or written, related to the funding any of the full amount their respective Affiliates of the Equity Financing, other than as expressly set forth in the Equity Financing Commitment. As of the Agreement Date, no event has occurred any facts 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 Parent under the Equity Financing Commitment, and, assuming the satisfaction of the conditions set forth in Sections 8.1 and 8.2, as of the Agreement Date, Parent does not have any reason cause them to believe that any of the conditions to financings contemplated by the Equity Financing Commitment Letters will not be satisfied consummated substantially in accordance with the terms thereof. All commitment fees and other fees required to be paid pursuant to the Commitment Letters on or that prior to the Equity Financing will not be available to Parent on the Closing Datedate hereof have been paid.

Financing Capability. (a) The Parent has entered into a sale-leaseback facility commitment letter with Drawbridge Special Opportunity Fund, LLC dated July 23, 2006 ("Drawbridge") and the Parent and the Merger Subsidiary have entered into a debt financing commitment letter from Credit Suisse Securities (USA) LLC and UBS Securities LLC (together with Drawbridge, the "Lenders") dated July 24, 2006 (the "Commitment Letters") pursuant to which the sale-leaseback facility and debt financing sources identified therein have committed to provide to the Parent up to $1.5 billion in the aggregate (the "Financing"), subject to the terms and conditions therein and assuming that the conditions set forth in Sections 6.1 and 6.2 are satisfied as of the Closing. The Parent has delivered correct and complete copies of the Commitment Letters to the Company. As of the date hereof, Parent has delivered to the Company duly executed copies of the equity commitment letter, dated as of May 27, 2016 between Parent Commitment Letters (i) are in full force and Guarantor (the “Equity Financing Commitment”), pursuant to which such Person has committed to invest, subject solely to the terms and conditions set forth therein, the amount set forth therein (the “Equity Financing”). Assuming that (x) the conditions set forth in Section 8.1 have been satisfiedeffect, (yii) the representations and warranties made by the Company are true and correct (without giving effect to any Material Adverse Effect or materiality qualifier or exception contained therein), and (z) the Company has performed and complied with all covenants and agreements required to be performed by it hereunder, the aggregate proceeds contemplated to be disbursed pursuant to the Equity Financing Commitment together with cash and cash equivalents available to Parent, will, in the aggregate, be sufficient for Parent to consummate the Merger, to pay the total Merger Consideration, to repay or refinance in full existing Indebtedness of the Company and its Subsidiaries in accordance with the Payoff Letters, and to pay the fees and expenses incurred in connection with the transactions contemplated hereby. As of the Agreement Date, the Equity Financing Commitment, in the form provided to the Company, is a legal, valid, binding and enforceable obligation of against the Parent and, to the knowledge of Parent, each of the other parties theretothereto in accordance with their respective terms, subject to the effects of except that (A) such enforcement may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other moratorium, fraudulent transfer or similar laws Laws of general applicability relating to or affecting enforcement of creditors’ ' rights generally and general (B) the remedy of specific performance and injunctive and other forms of equitable principles relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and (whether considered iii) have not been amended or terminated in a proceeding in equity or at law)any manner adverse to the Company. As of the Agreement Datedate of this Agreement, the Equity Financing Parent does not believe that the Commitment is in full force and effect and has not been amended, modified, withdrawn Letters will be terminated or rescinded amended in any respectmaterial respect in a manner adverse to the Company. As of the Agreement Datedate of this Agreement, there are no conditions precedent the Lenders have not advised Parent, Merger Subsidiary or contingencies, whether oral or written, related to the funding any of the full amount their respective Affiliates of the Equity Financing, other than as expressly set forth in the Equity Financing Commitment. As of the Agreement Date, no event has occurred any facts 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 Parent under the Equity Financing Commitment, and, assuming the satisfaction of the conditions set forth in Sections 8.1 and 8.2, as of the Agreement Date, Parent does not have any reason cause them to believe that any of the conditions to financings contemplated by the Equity Financing Commitment Letters will not be satisfied consummated substantially in accordance with the terms thereof. All commitment fees and other fees required to be paid pursuant to the Commitment Letters on or that prior to the Equity Financing will not be available to Parent on the Closing Datedate hereof have been paid.

Financing Capability. As of the date hereof, Parent has delivered to the Company duly executed copies of the equity commitment letter, dated as of May 27June 23, 2016 between Parent and Guarantor (the “Equity Financing Commitment”), pursuant to which such Person has committed to invest, subject solely to the terms and conditions set forth therein, the amount set forth therein (the “Equity Financing”). Assuming that (x) the conditions set forth in Section 8.1 have been satisfied, (y) the representations and warranties made by the Company are true and correct (without giving effect to any Material Adverse Effect or materiality qualifier or exception contained therein), and (z) the Company has performed and complied with all covenants and agreements required to be performed by it hereunder, the aggregate proceeds contemplated to be disbursed pursuant to the Equity Financing Commitment together with cash and cash equivalents available to Parent, will, in the aggregate, be sufficient for Parent to consummate the Merger, to pay the total Merger Consideration, to repay or refinance in full existing Indebtedness of the Company and its Subsidiaries in accordance with the Payoff Letters, and to pay the fees and expenses incurred in connection with the transactions contemplated hereby. As of the Agreement Date, the Equity Financing Commitment, in the form provided to the Company, is a legal, valid, binding and enforceable obligation of Parent and, to the knowledge of Parent, the other parties thereto, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law). As of the Agreement Date, the Equity Financing Commitment is in full force and effect and has not been amended, modified, withdrawn or rescinded in any respect. As of the Agreement Date, there are no conditions precedent or contingencies, whether oral or written, related to the funding of the full amount of the Equity Financing, other than as expressly set forth in the Equity Financing Commitment. As of the Agreement Date, 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 Parent under the Equity Financing Commitment, and, assuming the satisfaction of the conditions set forth in Sections 8.1 and 8.2, as of the Agreement Date, Parent 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 Parent on the Closing Date.