Common use of Financing Commitments Clause in Contracts

Financing Commitments. (a) Parent shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable to consummate and obtain the Financing on the terms and conditions described in the Financing Commitment Letter, including using commercially reasonable efforts to (i) maintain in effect the Financing Commitment Letter, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub’s obtaining the Financing that are within their control, (iii) negotiate definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitment Letter, and (iv) consummate the Financing at or prior to the Closing. Without the Company’s prior written consent (which consent shall not be unreasonably conditioned, withheld or delayed), Parent shall not, and shall not permit Merger Sub to, agree to or permit any amendment, replacement, supplement, or other modification of, or waive any of its material rights under, the Financing Commitment Letter or any definitive agreements related to the Financing Commitment Letter (including any and all fee letters), if such amendment, replacement, supplement or other modification or waiver would reasonably be expected to prevent, materially delay, or materially impede the consummation of the Financing or the transactions contemplated by this Agreement; and provided that, for the avoidance of doubt, Parent and Merger Sub may (without the prior consent of the Company) replace and amend the Financing Commitment Letter to add lenders, lead arrangers, book runners, syndication agents, or similar entities that had not executed the Financing Commitment Letter as of the date of this Agreement, so long as any such addition would not reasonably be expected to prevent, materially hinder, or materially delay the consummation of the Financing or the transactions contemplated by this Agreement. Upon any such amendment, replacement, supplement, or modification of any of the Financing Commitment Letter in accordance with this Section 5.16(a), the term “Financing Commitment Letter” shall mean the Financing Commitment Letter as so amended, replaced, supplemented, or modified in accordance with this Section 5.16(a), and the term “Financing” shall mean the financing contemplated by the Financing Commitment Letter as so amended, replaced, supplemented or modified.

Financing Commitments. (a) Parent The Buyer will use its reasonable best efforts to arrange and close the financing set forth in the Commitment Letters and to satisfy the conditions set forth in the Commitment Letters. The Buyer shall keep the Company informed with respect to all material developments concerning the status of the financings contemplated by the Commitment Letters. Without limiting the foregoing, the Buyer agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) any Commitment Letter shall expire or be terminated for any reason, (ii) any financing source that is a party to any Commitment Letter notifies the Buyer that such source no longer intends to provide financing to the Buyer on the terms set forth therein, or (iii) for any reason the Buyer no longer believes in good faith that it will be able to obtain the Required Cash Amount from cash on hand and the Commitment Letters. The Buyer shall not amend or alter, or agree to amend or alter, any Commitment Letter in any manner that would impair, delay or prevent the transactions contemplated by this Agreement without the prior written consent of the Company. (b) If any Commitment Letter shall be terminated or modified in a manner materially adverse to the Buyer for any reason, the Buyer shall use its commercially reasonable best efforts to takeobtain alternative financing as promptly as practical in an amount that, together with existing cash resources, will equal the Required Cash Amount. If obtained, the Buyer will provide the Company with a copy of the new financing commitment letters. (c) From the date of this Agreement until the Effective Time, the Company agrees to provide, and shall cause its Subsidiaries to provide, and will use its reasonable best efforts to cause their respective Representatives to provide, such cooperation as may be reasonably requested by Buyer in connection with the arrangement of, and the negotiation of agreements with respect to, its financing (and any substitutions, replacements or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable to consummate and obtain the Financing on the terms and conditions described in the Financing Commitment Letterrefinancing thereof), including using commercially reasonable best efforts to (i) maintain in effect cause appropriate officers and employees to be available, on a customary basis and upon reasonable notice, to meet with prospective lenders and due diligence sessions each conducted at the Financing Commitment Letterexpense of Buyer, and (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub’s obtaining assist with the Financing that are within their control, (iii) negotiate definitive agreements with respect thereto on the terms and conditions contained preparation of disclosure documents in the Financing Commitment Letter, and (iv) consummate the Financing at or prior to the Closing. Without the Company’s prior written consent (which consent shall not be unreasonably conditioned, withheld or delayed), Parent shall not, and shall not permit Merger Sub to, agree to or permit any amendment, replacement, supplement, or other modification of, or waive any of its material rights under, the Financing Commitment Letter or any definitive agreements related to the Financing Commitment Letter (including any and all fee letters), if such amendment, replacement, supplement or other modification or waiver would reasonably be expected to prevent, materially delay, or materially impede the consummation of the Financing or the transactions contemplated by this Agreement; and provided that, for the avoidance of doubt, Parent and Merger Sub may (without the prior consent of the Company) replace and amend the Financing Commitment Letter to add lenders, lead arrangers, book runners, syndication agents, or similar entities that had not executed the Financing Commitment Letter as of the date of this Agreement, so long as any such addition would not reasonably be expected to prevent, materially hinder, or materially delay the consummation of the Financing or the transactions contemplated by this Agreement. Upon any such amendment, replacement, supplement, or modification of any of the Financing Commitment Letter in accordance with this Section 5.16(a), the term “Financing Commitment Letter” shall mean the Financing Commitment Letter as so amended, replaced, supplemented, or modified in accordance with this Section 5.16(a), and the term “Financing” shall mean the financing contemplated by the Financing Commitment Letter as so amended, replaced, supplemented or modifiedconnection therewith.

Financing Commitments. (a) Parent Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and shall use its reasonable best efforts to do, or cause to be done, all things necessary, proper, proper or advisable to consummate and obtain the proceeds of the Debt Financing on the terms and conditions described in the Financing Debt Commitment Letter, including using commercially reasonable best efforts to (i) maintain in effect the Financing Debt Commitment Letter, (ii) satisfy (or obtain the waiver of) on a timely basis all conditions applicable to Buyer to obtain the Debt Financing, including, as promptly as practicable following the Agreement Date and receipt from Parent or its Affiliates, as applicable, delivering to the Lead Arranger (as defined in the Debt Commitment Letter), the documents and Merger Sub’s obtaining information required under the Financing that are within their controlDebt Commitment Letter to commence the marketing period under the Debt Commitment Letter, (iii) negotiate definitive agreements with respect thereto on the terms and conditions contained in the Financing Debt Commitment LetterLetter (including any “flex” provisions) or on other terms that, in the Buyer’s sole discretion, (A) would otherwise be permitted by Section 5.11(b) and (B) would not reasonably be expected to materially delay or adversely affect, in any material respect, the ability of Buyer to consummate the transactions contemplated hereby, (iv) consummate the Debt Financing at or prior to the ClosingClosing and (v) enforce its rights under the Debt Commitment Letter. Without Buyer shall not permit any amendment or modification to be made to, or any waiver of any material provision or remedy under, the Company’s Debt Commitment Letter or any ancillary letters referred to therein without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned, withheld or delayed), Parent shall not, and shall not permit Merger Sub to, agree to or permit any amendment, replacement, supplement, or other modification of, or waive any of its material rights under, the Financing Commitment Letter or any definitive agreements related to the Financing Commitment Letter (including any and all fee letters), ) if such amendment, replacement, supplement or other modification or waiver (A) adds any new conditions to the consummation of all or any portion of the Debt Financing or amends, replaces, supplements or modifies any existing conditions to the consummation of all or any portion of the Debt Financing in a manner that would reasonably be expected to prevent, materially delay, or impede or materially impede delay the consummation Debt Financing, (B) reduces (or has the effect of reducing) the amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount in respect of the Debt Financing (except as set forth in any flex provisions existing on the date hereof)) to an amount that, together with other available cash or other funds of Buyer and its Subsidiaries, would on the Closing Date be less than the amount required to consummate the transactions contemplated by this Agreement; and provided that, for the avoidance of doubt, Parent and Merger Sub may (without the prior consent of the CompanyC) replace and amend the Financing Commitment Letter to add lenders, lead arrangers, book runners, syndication agents, or similar entities that had not executed the Financing Commitment Letter as of the date of this Agreement, so long as any such addition would not could otherwise reasonably be expected to prevent, materially hinder, impede or materially delay the consummation availability of the Debt Financing or (D) materially adversely affects the transactions contemplated by this Agreement. Upon any such amendment, replacement, supplement, or modification ability of any of Buyer to enforce its rights under the Financing Debt Commitment Letter in accordance with this Section 5.16(a), or any Alternative Financing. In the term “Financing Commitment Letter” shall mean event that the Financing Debt Commitment Letter as so is amended, replaced, supplementedsupplemented or Alternative Financing is obtained, or modified Buyer shall comply with its covenants in accordance with this Section 5.16(a), 5.11(a) and Section 5.11(b) with respect to the term “Financing” shall mean the financing contemplated by the Financing Debt Commitment Letter as so amended, replaced, supplemented or modifiedwith respect to the Alternative Financing, if applicable, to the same extent that Buyer would have been obligated to comply with respect to the Debt Financing. Notwithstanding the foregoing, Buyer shall be permitted to amend, modify or supplement the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, agents or similar entities who have not executed the Debt Commitment Letter as of the date hereof on terms substantially similar to those contained in the Debt Commitment Letter. (b) In the event any portion of the Debt Financing becomes unavailable on the terms and conditions described in or contemplated by the Debt Commitment Letter for any reason and such portion is reasonably required to consummate the transactions contemplated hereby at or prior to the Closing, Buyer shall promptly notify Parent and Buyer shall use its reasonable best efforts to arrange and obtain, as promptly as practicable following the occurrence of such event, alternative financing from alternative sources (“Alternative Financing”) in an amount sufficient (when taken together with other available cash or other funds of Buyer and its Subsidiaries) to consummate the transactions contemplated hereby with terms and conditions no less favorable, taken as a whole, to Buyer (or its Affiliates) than the terms and conditions set forth in the Debt Commitment Letter. (c) Prior to the Closing, Parent shall use its reasonable best efforts to provide, and shall cause its Subsidiaries (including the Transferred Subsidiaries) and its and their respective Representatives to use reasonable best efforts to provide such cooperation as is reasonably requested by Buyer in connection with the arrangement of the Debt Financing or any Alternative Financing (provided that such requested cooperation does not (1) unreasonably interfere with the ongoing operations of Parent and its Affiliates), (2) require the board of directors of Parent to waive or amend any terms of this Agreement or agree to pay any commitment or other similar fee or incur any other cost or expense (in each case, on or prior to the Closing) that is not reimbursed by Buyer, (3) require Parent or any of its Subsidiaries (including the Transferred Subsidiaries) to take any action that would violate any of their organizational documents or any Laws or would result in a violation or breach by the Parent of any of its Subsidiaries (including the Transferred Subsidiaries), or default under, any contract or agreement to which such Person is a party as of the date hereof, or (4) result in any officer or director of Parent or any of its Subsidiaries incurring any personal liability), including by using reasonable best efforts to: (i) to the extent customary and reasonable, participate in a reasonable number of meetings (including meetings with prospective lenders), presentations, road shows, drafting sessions and due diligence sessions, including using commercially reasonable best efforts to coordinate direct contact between senior management and the independent auditors of Asset Sellers, the Transferred Subsidiaries and Parent on the one hand, and the actual and potential lenders, on the other hand and sessions with rating agencies, at reasonable times and with reasonable advance notice, (ii) facilitate the pledging of, and perfection of security interests in, the Assets and the Interests, effective no earlier than the Closing Date; provided that the delivery of any original stock certificates and other certificated securities shall be delivered in escrow pending release at the Closing, (iii) furnish to Buyer and its financing sources as promptly as reasonably practicable the Required Information, (iv) update any Required Information provided to Buyer as may be necessary for such Required Information to remain Compliant and update any Required Information as may be necessary so that the Required Information does not contain any untrue statement of a material fact with respect to the Business or omit to state any material fact with respect to the Business necessary to make the statements contained in such Required Information not misleading in any material respect (after giving effect to all supplements and updates thereto from time to time) in light of the circumstances in which they were made, (v) providing upon the reasonable request of the Buyer and/or Debt Financing sources such information reasonably deemed necessary to prepare a confidential information memorandum (including a version that does not include material non-public information) and other customary materials reasonably required to complete the syndication or obtain the “Required Consent” as defined in the Debt Commitment Letter, (vi) providing upon the reasonable request of the Buyer and/or Debt Financing sources assistance in obtaining customary auditor comfort letters and to provide consents for use of such independent auditors’ reports relating to the Business in any customary filings required to be made by Buyer pursuant to the Securities Act or the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder) where financial information of the Business is included, (vii) assist Buyer in the preparation of (A) customary materials for rating agency and investor presentations (including “roadshow” or investor meeting slides), registration statements, offering memoranda, prospectuses, private placement memoranda (including under Rule 144A under the Securities Act), and other customary marketing materials and (B) definitive documentation for the Debt Financing, (viii) provide customary authorization letters authorizing the distribution of information to prospective lenders or investors and containing customary representations that the public side versions of such documents, if any, do not include material non-public information about Parent, the Transferred Subsidiaries or their consolidated Subsidiaries or securities, (ix) cause directors and officers of the Transferred Subsidiaries who will continue to hold such offices and positions from and after the Closing Date to execute resolutions or consents of the Transferred Subsidiaries as is otherwise necessary in connection with the Debt Financing, (x) cooperate to facilitate the due diligence efforts of Buyer’s financing sources relating to the Business, to the extent customary and reasonable and not unreasonably interfering with the business of Parent and its Subsidiaries, (xi) facilitate the delivery and execution of customary guarantee and other definitive financing documents by the Transferred Subsidiaries, including customary certificates, and facilitating legal opinions and other documents as may be reasonably requested by Buyer (provided that, for the avoidance of doubt, any obligations contained in such documents shall be effective no earlier than as of the Closing), (xii) facilitate the release of any Encumbrances on the Assets and the Interests and the termination of all guarantees (if any) in connection therewith subject to the occurrence of the Closing and (xiii) provide at least four (4) Business Days prior to the Closing Date, all documentation and other information as is required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act to the extent requested by Buyer in writing at least nine (9) Business Days prior to the anticipated Closing Date. Notwithstanding anything in this Agreement to the contrary, (i) none of Parent or any of its Affiliates (other than the Transferred Subsidiaries at and following the Closing) shall be required to pay any commitment or other fee or incur any other Liability or obligation in connection with the Debt Financing or Alternative Financing, (ii) no obligation of any Transferred Subsidiary under any document, certificate or instrument executed pursuant to this Section 5.11(c) shall be effective until the Closing, (iii) none of Parent or any of its Affiliates shall be required to execute or deliver or have any Liability or obligation under any loan agreement or any related document or any other agreement or document (including any certificates, legal opinions or pledge or security documents) related to the Debt Financing or Alternative Financing, and (iv) other than the Required Information, no financial statements shall be required to be furnished hereunder. Buyer shall promptly, upon request by Parent, reimburse Parent for all reasonable and invoiced out-of-pocket costs (including reasonable attorneys’ fees) incurred by Parent or any of its Affiliates in connection with the cooperation of Parent and its Affiliates contemplated by this Section 5.11(c) (including, for the avoidance of doubt, in connection with the cooperation of Parent and its Affiliates with respect to any offering of debt securities that the Buyer may elect to pursue to finance the transactions contemplated hereby) and shall indemnify and hold harmless Parent and its Affiliates and their respective directors, officers, employees and representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing (or any Alternative Financing) (which shall be deemed to include any offering of debt securities that the Buyer may elect to pursue to finance the transactions contemplated hereby in addition to or lieu of the Debt Financing) and any information used in connection therewith (other than factual information provided in writing by Parent or its Affiliates specifically in connection with its obligations pursuant to this Section 5.11(c)). The foregoing indemnification obligation shall survive the Closing and any termination of this Agreement and shall not be subject to the indemnification requirements in Article X. All non-public or other confidential information provided by Parent or any Seller or its Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Buyer will be permitted to disclose such information to any financing sources or prospective financing sources and other financial institutions and investors that may become parties to the Debt Financing and to any underwriters, initial purchasers or placement agents in connection with the Debt Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto or other confidentiality obligations that are substantially similar to those contained in the Confidentiality Agreement or (ii) are subject to customary confidentiality arrangements, or other confidentiality undertakings reasonably satisfactory to Parent and of which Parent is a beneficiary. Notwithstanding anything to the contrary, the condition set forth in Section 8.02(a) of this Agreement, as it applies to Parent’s and its affiliates’ obligations under this Section 5.11, shall be deemed satisfied unless (A) Buyer has not obtained the Debt Financing or Alternative Financing on the terms set forth in the Debt Commitment Letter and (B) Parent’s material breach of its obligations under this Section 5.11 was a proximate cause of the failure of Buyer to obtain the Debt Financing. Parent hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, that such logos are used solely in a manner that is reasonable and customary and that is not reasonably likely to harm or disparage Parent or its Subsidiaries in any respect. (d) Buyer shall give Parent prompt written notice: (i) of any material breach or default by any party to, or any condition not likely to be satisfied in, the Debt Commitment Letter (or any Alternative Financing) or any definitive document related to the Debt Financing of which Buyer becomes aware, (ii) of any termination (or threat of termination) of the Debt Commitment Letter (or commitments for Alternative Financing), (iii) if, for any reason, Buyer believes in good faith that it is reasonably likely that it will not be able to obtain all or any material portion of the Debt Financing in the amounts contemplated by the Financing Agreements (or any Alternative Financing) and that it is not reasonably likely that it will be able to obtain acceptable Alternative Financing. Buyer shall keep Parent informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange and consummate the Debt Financing (or Alternative Financing). In the event that the Debt Commitment Letter is amended, replaced, supplemented or modified in accordance with this Section 5.11 or Alternative Financing is obtained in accordance with this Section 5.11, Buyer shall promptly notify Parent of such event. Buyer acknowledges and agrees that obtaining the Debt Financing or any Alternative Financing is not a condition precedent to Buyer’s obligations under this Agreement, including Buyer’s obligations pursuant to Article II.

Financing Commitments. (a) Parent shall and the Company will use its commercially reasonable best efforts to takefully satisfy, or cause to be takenon a timely basis, all actions terms, conditions, representations and warranties set forth in the Commitment Letters. Parent will use reasonable best efforts to do, or cause enter into definitive agreements with respect to be done, all things necessary, proper, or advisable to consummate and obtain the Financing financings contemplated by the Commitment Letters on the terms and conditions described no less favorable to Parent in the Financing aggregate than the Commitment LetterLetters and on such other terms and conditions as shall be satisfactory to Parent as soon as commercially reasonable but in any event at or prior to the Closing, including using commercially reasonable best efforts to (i) maintain in effect the Financing Commitment Letter, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub’s obtaining the Financing that are within their control, (iii) negotiate definitive agreements with respect thereto on terms and conditions contained therein or on terms that are not materially adverse to the Company as compared to the terms set forth in the Commitment Letters and (ii) to satisfy all conditions applicable to Parent and Merger Sub in such definitive agreements that are within its control. Parent will furnish correct and complete copies of such definitive agreements to the Company promptly upon their execution. In the event that any of the financings contemplated by the Commitment Letters becomes unavailable on the terms and conditions contained contemplated in the Financing Commitment LetterLetters, and (iv) consummate Parent shall use its reasonable best efforts to arrange to obtain any such portion from alternative sources on terms no less favorable in the Financing at or prior aggregate to Parent as compared to the Closingterms set forth in the Commitment Letters. (b) Parent shall keep the Company informed in reasonable detail with respect to all material activity concerning the status of the financings contemplated by the Commitment Letters. Without Parent shall not amend or alter, or agree to amend or alter, any Commitment Letter in any material respect in any manner that would materially impair or delay or prevent the Company’s transactions contemplated by this Agreement without the prior written consent (which consent shall not be unreasonably conditionedof the Company. Parent will promptly inform the Company and the Special Committee upon its becoming aware of any event, withheld fact or delayed), Parent shall not, and shall not permit Merger Sub to, agree to or permit any amendment, replacement, supplement, or other modification of, or waive any of its material rights under, the Financing Commitment Letter or any definitive agreements related condition principally unrelated to the Financing Commitment Letter (including any and all fee letters), if such amendment, replacement, supplement or other modification or waiver Company which would reasonably be expected to prevent, materially delay, or materially impede cause the consummation of the Financing financing transaction contemplated in the Commitment Letters to be delayed or materially adversely affected. Parent will notify the Company and the Special Committee promptly or upon receipt of any notice from either of the Senior Lenders in the financing it committed to provide at the Effective Time that such Senior Lender intends to withdraw, change or modify any of the loans described in the Commitment Letters in any material respect. (c) The Company agrees to use its reasonable best efforts to provide Parent with such cooperation (provided such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries) in connection with the arrangement of the financings contemplated by the Debt Commitment Letter as may be reasonably requested by Parent, including (i) participation in meetings, drafting sessions, due diligence sessions, management presentation sessions, “road shows” and sessions with rating agencies, (ii) preparation of business projections, financial statements (including pro forma financial statements), offering memoranda, private placement memoranda, prospectuses and similar documents and the representations contained therein and (iii) execution and delivery of any underwriting or placement agreements, pledge and security documents, other financing documents, including any indemnity agreements, or other requested certificates or documents, including a certificate of the chief financial officer of the Company with respect to solvency matters, comfort letters of accountants, consents of accountants for use of their reports in any materials relating to the financing to be used in connection with the transactions contemplated by this Agreement, legal opinions, surveys and title insurance as may be reasonably requested by Parent. The Company shall also use its reasonable best efforts to take such further action as may be required to cause an independent auditor of the Company to provide any unqualified opinions, consents or customary comfort letters with respect to the financial statements. The Company shall allow Parent’s representatives the opportunity to review and comment upon the financial statements (including pro forma financial statements) in draft form and to allow such representatives access to the Company and supporting documentation with respect to the preparation of such financial statements and the independent auditors’ work papers relating to such financial statements. Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability in connection with the financings contemplated by the Commitment Letters prior to the Effective Time. (d) The Company shall use its reasonable best efforts to commence a self tender offer and consent solicitation (the “Note Tender Offer”) to repurchase any and all of the outstanding 9.75% Senior Subordinated Notes due 2012 (the “Notes”) issued by Encore IHC, Inc. (the “Issuer”) and guaranteed by the Company and certain of its subsidiaries (the “Subsidiary Guarantors”). The Company shall commence the Note Tender Offer on a date prior to, but in any event, not more than fifteen (15) days prior to, the estimated date of mailing of the Proxy Statement or on any other date designated by Parent on at least five (5) days prior notice to the Company. The Note Tender Offer shall be effected strictly pursuant to the terms and conditions set forth in Section 5.3(d) of the Company Disclosure Schedule (unless otherwise agreed to in writing by the parties), shall be conditioned on the completion of the Merger and the consummation of the Refinancing, and otherwise in compliance with applicable laws and SEC rules and regulations; provided that (A) this Agreement shall not have been terminated in accordance with Section 8.1, and provided (B) at the time of such commencement, Parent shall have otherwise performed or complied with, in all material respects, all of its agreements and covenants required by this Agreement to be performed on or prior to the time that the Note Tender Offer is commenced. The Company shall waive any of the conditions to the Note Tender Offer (other than the conditions that the Merger shall have been consummated and that there shall be no order or injunction prohibiting consummation of the Note Tender Offer) as may be reasonably requested by Parent and shall not, without the consent of Parent, waive any condition to the Note Tender Offer or make any changes to the terms and conditions of the Note Tender Offer other than as agreed between Parent and the Company. Notwithstanding the immediately preceding sentence, the Company need not make any change to the terms and conditions of the Note Tender Offer requested by Parent that decreases the price per Note payable in the Note Tender Offer or related consent solicitation or imposes conditions to the Note Tender Offer or related consent solicitation in addition to those set forth in Section 5.3(d) of the Company Disclosure Schedule that are materially adverse to holders of the Notes, unless such change is approved by the Company in writing. (i) The Company covenants and agrees that, immediately following the consent expiration date, assuming the requisite consents are received, the Company, the Issuer and the Subsidiary Guarantors shall execute a supplemental indenture to the indenture governing the Notes, which supplemental indenture shall implement the amendments described in the offer to purchase, related letter of transmittal, and other related documents (collectively, the “Offer Documents”) and shall become operative immediately at the Effective Time, subject to the terms and conditions of this Agreement (including the conditions to the Note Tender Offer). Concurrent with the Effective Time, Parent shall cause the Surviving Corporation to accept for payment and thereafter promptly pay for the avoidance of doubt, Parent Notes that have been properly tendered and Merger Sub may not withdrawn pursuant to the Note Tender Offer. (without the prior consent of the Companyii) replace and amend the Financing Commitment Letter to add lenders, lead arrangers, book runners, syndication agents, or similar entities that had not executed the Financing Commitment Letter as of Promptly after the date of this Agreement, Parent shall prepare all necessary and appropriate documentation in connection with the Note Tender Offer, including the Offer Documents. Parent and the Company shall cooperate with each other in the preparation of the Offer Documents. All mailings to the holders of the Notes in connection with the Note Tender Offer shall be subject to the prior review of, and comment by, the Company and Parent and shall be reasonably acceptable to each of them. If at any time prior to the completion of the Note Tender Offer any information in the Offer Documents should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Offer Documents, so long as that the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be disseminated to the holders of the Notes (which supplement or amendment and dissemination may, at the reasonable direction of Parent, take the form of a filing of a Report on Form 8-K). Notwithstanding anything to the contrary in this Section 5.3(d), the Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable Law to the extent such Laws are applicable in connection with the Note Tender Offer. To the extent that the provisions of any applicable Law conflict with this Section 5.3(d), the Company shall comply with the applicable Law and shall not be deemed to have breached its obligations hereunder by such compliance. (iii) In connection with the Note Tender Offer, Parent may select one or more dealer managers, information agents, depositaries and other agents to provide assistance in connection therewith and the Company shall enter into customary agreements (including indemnities) with such parties so selected. Parent shall pay the reasonable fees and out-of-pocket expenses of any dealer manager, information agent, depositary or other agent retained in connection with the Note Tender Offer. Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company, the Subsidiaries, their respective officers and directors and each person, if any, who controls the Company within the meaning of Section 20 of the Exchange Act for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the Note Tender Offer and the Offer Documents; provided, however, that neither Parent nor Merger Sub shall have any obligation to indemnify and hold harmless any such addition would not reasonably be expected party or person to preventthe extent that any such liabilities, materially hinderlosses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or materially delay incurred arises from disclosure provided by the Company that is determined to have contained a material misstatement or omission. (e) At the Closing, immediately following the consummation of the Financing or Merger, Surviving Corporation shall consummate a refinancing (the transactions contemplated by this Agreement. Upon any such amendment, replacement, supplement, or modification of any “Refinancing”) pursuant to which the Company shall (a) repurchase and retire all of the Financing Commitment Letter issued and outstanding Notes validly tendered and not withdrawn in accordance the Note Tender Offer and (b) repay in full all of the outstanding principal and premium, if any, together with this Section 5.16(aaccrued interest and fees and all amounts under the Credit Agreement, dated as of October 4, 2004, among Encore Medical IHC, Inc., as Borrower, the Company, as Holdings, Bank of America, N.A., (“Bank of America”), as Administrative Agent, Swing Line Lender and L/C Issuer, the term Other Lender Parties named therein and Banc of America Securities LLC, as Sole Lead Arranger and Sole Book Manager, as amended as of December 20, 2005 (the “Financing Commitment Letter” Existing Credit Agreement”). (f) At or prior to the Effective Time, the Company shall mean use its reasonable best efforts to deliver to Parent copies of payoff letters from Bank of America acknowledging that, subject to repayment of the Financing Commitment Letter as so amendedaggregate principal amount outstanding under the Existing Credit Agreement, replacedtogether with all interest accrued thereon and any other fees or expenses payable thereunder, supplemented(i) the Existing Credit Agreement has been terminated, (ii) any and all Liens held by Bank of America or modified in accordance with this Section 5.16(aany other collateral agent under the Existing Credit Agreement related thereto have been released and (iii) the Company and its Subsidiaries have been released from any and all liabilities and obligations under the Existing Credit Agreement and any related guaranties (other than any obligations under any indemnification or similar provision that survive such termination), and the term “Financing” shall mean the financing contemplated by the Financing Commitment Letter as so amended, replaced, supplemented or modified.

Financing Commitments. (a) Parent Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and shall use its reasonable best efforts to do, or cause to be done, all things necessary, proper, proper or advisable to consummate and obtain the proceeds of the Debt Financing on the terms and conditions described in the Financing Debt Commitment Letter, including using commercially reasonable best efforts to (i) maintain in effect the Financing Debt Commitment Letter, (ii) satisfy (or obtain the waiver of) on a timely basis all conditions applicable to Buyer to obtain the Debt Financing, including, as promptly as practicable following the Agreement Date and receipt from Parent or its Affiliates, as applicable, delivering to the Lead Arranger (as defined in the Debt Commitment Letter), the documents and Merger Sub’s obtaining information required under the Financing that are within their controlDebt Commitment Letter to commence the marketing period under the Debt Commitment Letter, (iii) negotiate definitive agreements with respect thereto on the terms and conditions contained in the Financing Debt Commitment LetterLetter (including any “flex” provisions) or on other terms that, in the Buyer’s sole discretion, (A) would otherwise be permitted by Section 5.11(b) and (B) would not reasonably be expected to materially delay or adversely affect, in any material respect, the ability of Buyer to consummate the transactions contemplated hereby, (iv) consummate the Debt Financing at or prior to the ClosingClosing and (v) enforce its rights under the Debt Commitment Letter. Without Buyer shall not permit any amendment or modification to be made to, or any waiver of any material provision or remedy under, the Company’s Debt Commitment Letter or any ancillary letters referred to therein without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned, withheld or delayed), Parent shall not, and shall not permit Merger Sub to, agree to or permit any amendment, replacement, supplement, or other modification of, or waive any of its material rights under, the Financing Commitment Letter or any definitive agreements related to the Financing Commitment Letter (including any and all fee letters), ) if such amendment, replacement, supplement or other modification or waiver (A) adds any new conditions to the consummation of all or any portion of the Debt Financing or amends, replaces, supplements or modifies any existing conditions to the consummation of all or any portion of the Debt Financing in a manner that would reasonably be expected to prevent, materially delay, or impede or materially impede delay the consummation Debt Financing, (B) reduces (or has the effect of reducing) the amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount in respect of the Debt Financing (except as set forth in any flex provisions existing on the Agreement Date)) to an amount that, together with other available cash or other funds of Buyer and its Subsidiaries, would on the Closing Date be less than the amount required to consummate the transactions contemplated by this Agreement; and provided that, for the avoidance of doubt, Parent and Merger Sub may (without the prior consent of the CompanyC) replace and amend the Financing Commitment Letter to add lenders, lead arrangers, book runners, syndication agents, or similar entities that had not executed the Financing Commitment Letter as of the date of this Agreement, so long as any such addition would not could otherwise reasonably be expected to prevent, materially hinder, impede or materially delay the consummation availability of the Debt Financing or (D) materially adversely affects the transactions contemplated by this Agreement. Upon any such amendment, replacement, supplement, or modification ability of any of Buyer to enforce its rights under the Financing Debt Commitment Letter in accordance with this Section 5.16(a), or any Alternative Financing. In the term “Financing Commitment Letter” shall mean event that the Financing Debt Commitment Letter as so is amended, replaced, supplementedsupplemented or Alternative Financing is obtained, or modified Buyer shall comply with its covenants in accordance with this Section 5.16(a), 5.11(a) and Section 5.11(b) with respect to the term “Financing” shall mean the financing contemplated by the Financing Debt Commitment Letter as so amended, replaced, supplemented or modifiedwith respect to the Alternative Financing, if applicable, to the same extent that Buyer would have been obligated to comply with respect to the Debt Financing. Notwithstanding the foregoing, Buyer shall be permitted to amend, modify or supplement the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, agents or similar entities who have not executed the Debt Commitment Letter as of the Agreement Date on terms substantially similar to those contained in the Debt Commitment Letter. (b) In the event any portion of the Debt Financing becomes unavailable on the terms and conditions described in or contemplated by the Debt Commitment Letter for any reason and such portion is reasonably required to consummate the transactions contemplated hereby at or prior to the Closing, Buyer shall promptly notify Parent and Buyer shall use its reasonable best efforts to arrange and obtain, as promptly as practicable following the occurrence of such event, alternative financing from alternative sources (“Alternative Financing”) in an amount sufficient (when taken together with other available cash or other funds of Buyer and its Subsidiaries) to consummate the transactions contemplated hereby with terms and conditions no less favorable, taken as a whole, to Buyer (or its Affiliates) than the terms and conditions set forth in the Debt Commitment Letter. (c) Prior to the Closing, Parent shall use its reasonable best efforts to provide, and shall cause its Subsidiaries (including the Transferred Subsidiaries) and its and their respective Representatives to use reasonable best efforts to provide such cooperation as is reasonably requested by Buyer in connection with the arrangement of the Debt Financing or any Alternative Financing (provided that such requested cooperation does not (1) unreasonably interfere with the ongoing operations of Parent and its Affiliates), (2) require the board of directors of Parent to waive or amend any terms of this Agreement or agree to pay any commitment or other similar fee or incur any other cost or expense (in each case, on or prior to the Closing) that is not reimbursed by Buyer, (3) require Parent or any of its Subsidiaries (including the Transferred Subsidiaries) to take any action that would violate any of their organizational documents or any Laws or would result in a violation or breach by the Parent of any of its Subsidiaries (including the Transferred Subsidiaries), or default under, any contract or agreement to which such Person is a party as of the Agreement Date, or (4) result in any officer or director of Parent or any of its Subsidiaries incurring any personal liability), including by using reasonable best efforts to: (i) to the extent customary and reasonable, participate in a reasonable number of meetings (including meetings with prospective lenders), presentations, road shows, drafting sessions and due diligence sessions, including using commercially reasonable best efforts to coordinate direct contact between senior management and the independent auditors of Asset Sellers, the Transferred Subsidiaries and Parent on the one hand, and the actual and potential lenders, on the other hand and sessions with rating agencies, at reasonable times and with reasonable advance notice, (ii) facilitate the pledging of, and perfection of security interests in, the Assets and the Interests, effective no earlier than the Closing Date; provided that the delivery of any original stock certificates and other certificated securities shall be delivered in escrow pending release at the Closing, (iii) furnish to Buyer and its financing sources as promptly as reasonably practicable the Required Information, (iv) update any Required Information provided to Buyer as may be necessary for such Required Information to remain Compliant and update any Required Information as may be necessary so that the Required Information does not contain any untrue statement of a material fact with respect to the Business or omit to state any material fact with respect to the Business necessary to make the statements contained in such Required Information not misleading in any material respect (after giving effect to all supplements and updates thereto from time to time) in light of the circumstances in which they were made, (v) providing upon the reasonable request of the Buyer and/or Debt Financing sources such information reasonably deemed necessary to prepare a confidential information memorandum (including a version that does not include material non-public information) and other customary materials reasonably required to complete the syndication or obtain the “Required Consent” as defined in the Debt Commitment Letter, (vi) providing upon the reasonable request of the Buyer and/or Debt Financing sources assistance in obtaining customary auditor comfort letters and to provide consents for use of such independent auditors’ reports relating to the Business in any customary filings required to be made by Buyer pursuant to the Securities Act or the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder) where financial information of the Business is included, (vii) assist Buyer in the preparation of (A) customary materials for rating agency and investor presentations (including “roadshow” or investor meeting slides), registration statements, offering memoranda, prospectuses, private placement memoranda (including under Rule 144A under the Securities Act), and other customary marketing materials and (B) definitive documentation for the Debt Financing, (viii) provide customary authorization letters authorizing the distribution of information to prospective lenders or investors and containing customary representations that the public side versions of such documents, if any, do not include material non-public information about Parent, the Transferred Subsidiaries or their consolidated Subsidiaries or securities, (ix) cause directors and officers of the Transferred Subsidiaries who will continue to hold such offices and positions from and after the Closing Date to execute resolutions or consents of the Transferred Subsidiaries as is otherwise necessary in connection with the Debt Financing, (x) cooperate to facilitate the due diligence efforts of Buyer’s financing sources relating to the Business, to the extent customary and reasonable and not unreasonably interfering with the business of Parent and its Subsidiaries, (xi) facilitate the delivery and execution of customary guarantee and other definitive financing documents by the Transferred Subsidiaries, including customary certificates, and facilitating legal opinions and other documents as may be reasonably requested by Buyer (provided that, for the avoidance of doubt, any obligations contained in such documents shall be effective no earlier than as of the Closing), (xii) facilitate the release of any Encumbrances on the Assets and the Interests and the termination of all guarantees (if any) in connection therewith subject to the occurrence of the Closing and (xiii) provide at least four (4) Business Days prior to the Closing Date, all documentation and other information as is required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act to the extent requested by Buyer in writing at least nine (9) Business Days prior to the anticipated Closing Date. Notwithstanding anything in this Agreement to the contrary, (i) none of Parent or any of its Affiliates (other than the Transferred Subsidiaries at and following the Closing) shall be required to pay any commitment or other fee or incur any other Liability or obligation in connection with the Debt Financing or Alternative Financing, (ii) no obligation of any Transferred Subsidiary under any document, certificate or instrument executed pursuant to this Section 5.11(c) shall be effective until the Closing, (iii) none of Parent or any of its Affiliates shall be required to execute or deliver or have any Liability or obligation under any loan agreement or any related document or any other agreement or document (including any certificates, legal opinions or pledge or security documents) related to the Debt Financing or Alternative Financing, and (iv) other than the Required Information, no financial statements shall be required to be furnished hereunder. Buyer shall promptly, upon request by Parent, reimburse Parent for all reasonable and invoiced out-of-pocket costs (including reasonable attorneys’ fees) incurred by Parent or any of its Affiliates in connection with the cooperation of Parent and its Affiliates contemplated by this Section 5.11(c) (including, for the avoidance of doubt, in connection with the cooperation of Parent and its Affiliates with respect to any offering of debt securities that the Buyer may elect to pursue to finance the transactions contemplated hereby) and shall indemnify and hold harmless Parent and its Affiliates and their respective directors, officers, employees and representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing (or any Alternative Financing) (which shall be deemed to include any offering of debt securities that the Buyer may elect to pursue to finance the transactions contemplated hereby in addition to or lieu of the Debt Financing) and any information used in connection therewith (other than factual information provided in writing by Parent or its Affiliates specifically in connection with its obligations pursuant to this Section 5.11(c)). The foregoing indemnification obligation shall survive the Closing, the Delayed Closing and any Later Closings and any termination of this Agreement and shall not be subject to the indemnification requirements in Article X. All non-public or other confidential information provided by Parent or any Seller or its Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Buyer will be permitted to disclose such information to any financing sources or prospective financing sources and other financial institutions and investors that may become parties to the Debt Financing and to any underwriters, initial purchasers or placement agents in connection with the Debt Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto or other confidentiality obligations that are substantially similar to those contained in the Confidentiality Agreement or (ii) are subject to customary confidentiality arrangements, or other confidentiality undertakings reasonably satisfactory to Parent and of which Parent is a beneficiary. Notwithstanding anything to the contrary, the condition set forth in Section 8.02(a) of this Agreement, as it applies to Parent’s and its affiliates’ obligations under this Section 5.11, shall be deemed satisfied unless (A) Buyer has not obtained the Debt Financing or Alternative Financing on the terms set forth in the Debt Commitment Letter and (B) Parent’s material breach of its obligations under this Section 5.11 was a proximate cause of the failure of Buyer to obtain the Debt Financing. Parent hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, that such logos are used solely in a manner that is reasonable and customary and that is not reasonably likely to harm or disparage Parent or its Subsidiaries in any respect. (d) Buyer shall give Parent prompt written notice: (i) of any material breach or default by any party to, or any condition not likely to be satisfied in, the Debt Commitment Letter (or any Alternative Financing) or any definitive document related to the Debt Financing of which Buyer becomes aware, (ii) of any termination (or threat of termination) of the Debt Commitment Letter (or commitments for Alternative Financing), (iii) if, for any reason, Buyer believes in good faith that it is reasonably likely that it will not be able to obtain all or any material portion of the Debt Financing in the amounts contemplated by the Financing Agreements (or any Alternative Financing) and that it is not reasonably likely that it will be able to obtain acceptable Alternative Financing. Buyer shall keep Parent informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange and consummate the Debt Financing (or Alternative Financing). In the event that the Debt Commitment Letter is amended, replaced, supplemented or modified in accordance with this Section 5.11 or Alternative Financing is obtained in accordance with this Section 5.11, Buyer shall promptly notify Parent of such event. Buyer acknowledges and agrees that obtaining the Debt Financing or any Alternative Financing is not a condition precedent to Buyer’s obligations under this Agreement, including Buyer’s obligations pursuant to Article II.

Financing Commitments. (a) Parent shall The Buyer will use its commercially reasonable best efforts to take(i) fully satisfy, or cause on a timely basis, subject to be takenthe terms and conditions of this Agreement and the Debt Commitment Letters, all actions the terms, conditions, representations and warranties set forth in the Debt Commitment Letters, (ii) maintain in effect the Debt Commitment Letters and negotiate definitive agreements with respect to do, or cause to be done, all things necessary, proper, or advisable to consummate and obtain the Financing Debt Commitment Letters on the terms and conditions described set forth in the Financing Debt Commitment LetterLetter or on other terms no less favorable, including using commercially reasonable efforts in the aggregate, to (i) maintain the Buyer than those in effect the Financing Debt Commitment LetterLetters and that would not be reasonably expected to prevent the Closing from occurring on or before the End Date, (iiiii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub’s obtaining the Financing Buyer set forth in such definitive agreements that are within their control, (iii) negotiate definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitment Letter, reasonable control and (iv) consummate the Debt Financing contemplated by the Debt Commitment Letters at or prior to the Closing. Without In the Company’s event that all conditions in the Debt Commitment Letters (other than the availability of funding any of the Equity Financing) have been satisfied or, upon funding, will be satisfied, the Buyer shall use its reasonable best efforts to cause such lender and the other Persons providing the Debt Financing to fund on the Closing Date the Debt Financing required to consummate the transactions contemplated by this Agreement and otherwise enforce its rights under the Debt Commitment Letter. The Buyer agrees to notify the Seller promptly if at any time prior written consent to the Closing Date (which consent i) any Debt Commitment Letter shall expire or be terminated for any reason, or (ii) any Financing Source that is a party to any Debt Commitment Letter notifies the Buyer that such source no longer intends to provide financing to the Buyer on the terms set forth therein. The Buyer shall not be unreasonably conditionedamend, withheld alter or delayed)waive, Parent shall not, and shall not permit Merger Sub to, or agree to amend, alter or permit waive, any amendment, replacement, supplement, or other modification of, or waive any of its material rights under, the Financing Debt Commitment Letter or in any definitive agreements related to the Financing Commitment Letter (including any and all fee letters), if such amendment, replacement, supplement or other modification or waiver manner that would reasonably be expected to preventmaterially impair, materially delay, delay or materially impede prevent the consummation occurrence of the Financing or the transactions contemplated by this Agreement; and provided that, for the avoidance of doubt, Parent and Merger Sub may (Agreement without the prior written consent of the CompanySeller. The Buyer will furnish correct and complete copies of definitive agreements with respect to the Debt Financing to the Seller promptly upon their execution. (b) replace and amend the Financing If any Debt Commitment Letter shall be terminated or modified in a manner materially adverse to add lendersthe Buyer for any reason, lead arrangersthe Buyer shall use its reasonable best efforts to obtain, book runnersand, syndication agentsif obtained, or similar entities will provide the Seller and the Company with a copy of, a new financing commitment from alternative sources on terms no less favorable, in the aggregate, to the Buyer than those in the Debt Commitment Letters and that had not executed the Financing Commitment Letter as of the date of this Agreement, so long as any such addition would not be reasonably be expected to prevent, materially hinder, prevent the Closing from occurring on or materially delay before the consummation of End Date (a “Replacement Commitment”). (c) In the Financing or event that the transactions contemplated by this Agreement. Upon any such amendment, replacement, supplement, or modification of any of the Financing Debt Commitment Letter in accordance with this Section 5.16(a), the term “Financing Commitment Letter” shall mean the Financing Commitment Letter as so Letters are amended, replaced, supplementedsupplemented or otherwise modified, including as a result of obtaining any Replacement Commitment, (i) the Buyer shall keep the Seller and the Company informed on the terms thereof and shall deliver to the Company final drafts of any such amended, replaced, supplemented or modified in accordance with this Section 5.16(a)Debt Commitment Letter, and (ii) the term “Financing” Buyer shall mean comply with its covenants in Section 7.08 with respect to the financing contemplated by the Financing Debt Commitment Letter Letters, as so amended, replaced, supplemented or otherwise modified, or with respect to such Replacement Commitment, to the same extent that the Buyer would have been obligated to comply with respect to the original Debt Financing.

Financing Commitments. (a) Parent and Merger Sub shall (i) use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, proper or advisable to consummate and obtain the Financing on the terms and conditions described in the Financing Commitment LetterLetter and (ii) not permit any amendment or modification to be made to, including using commercially reasonable efforts or consent to any waiver of any provision or remedy under, the Financing Letter without the written consent of the Company. (b) Parent and Merger Sub shall (i) use reasonable best efforts to maintain in effect the Financing Commitment LetterLetter in accordance with the terms and subject to the conditions thereof, (ii) satisfy on a timely basis all conditions to the Financing Letter that are applicable to Parent and Merger Sub’s obtaining the Financing Sub that are within their control, (iii) negotiate definitive agreements with respect thereto on the terms and conditions contained control in the Financing Commitment Letter, and (iv) order to consummate the Financing at or prior to the ClosingClosing Date required by Section 1.02, (iii) comply with their obligations under the Financing Letter and (iv) enforce their rights under the Financing Letter in the event of a breach by any other party thereto. Without limiting the Company’s prior written consent (which consent shall not be unreasonably conditioned, withheld or delayed), Parent shall not, and shall not permit Merger Sub to, agree to or permit any amendment, replacement, supplement, or other modification of, or waive any of its material rights under, the Financing Commitment Letter or any definitive agreements related to the Financing Commitment Letter (including any and all fee letters), if such amendment, replacement, supplement or other modification or waiver would reasonably be expected to prevent, materially delay, or materially impede the consummation generality of the Financing or the transactions contemplated by this Agreement; and provided that, for the avoidance of doubtforegoing, Parent and Merger Sub may shall give the Company prompt notice (without x) of any breach or default by any party to the prior consent Financing Letter of which Parent and Merger Sub become aware and (y) of the Companyreceipt by Parent or Merger Sub of any notice or other communication from any Financing source with respect to any (A) replace and amend breach, default, termination or repudiation by any party to the Financing Commitment Letter to add lenders, lead arrangers, book runners, syndication agents, or similar entities that had not executed of any provisions of the Financing Commitment Letter or (B) dispute or disagreement between the parties to the Financing Letter that could cause the Financing to become unavailable. As soon as reasonably practicable, but in any event within two (2) Business Days of the date the Company delivers Parent or Merger Sub a written request, Parent and Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (x) or (y) of the immediately preceding sentence; provided, however, that neither Parent nor Merger Sub shall be under any obligation to provide any information that, if provided, would, in accordance with advice provided to Parent and Merger Sub by their outside legal counsel, adversely affect the ability of Parent or Merger Sub to assert attorney-client or attorney work product privilege or a similar privilege. (c) In the event any portion of the Financing becomes unavailable on the terms and conditions described in or contemplated by the Financing Letter for any reason and such portion is reasonably required to fund the Required Amounts, each of Parent and Merger Sub shall use best efforts to arrange to obtain, as promptly as practicable following the occurrence of such event, debt financing from debt financing sources (the “Alternative Financing”) in an amount sufficient to pay the Required Amounts. In the event that Alternative Financing shall be obtained pursuant to this AgreementSection 5.05(c), so long as any each of Parent and Merger Sub shall comply with its covenants in Section 5.05(a) and Section 5.05(b) with respect to such addition would not reasonably be expected to prevent, materially hinder, or materially delay Alternative Financing. (d) Each of Parent and Merger Sub acknowledges and agrees that neither the consummation availability nor the terms of the Financing or any Alternative Financing are conditions to the transactions contemplated by this Agreement. Upon any such amendment, replacement, supplement, or modification obligations of any of Parent and Merger Sub to consummate the Financing Commitment Letter in accordance with this Section 5.16(a), the term “Financing Commitment Letter” shall mean the Financing Commitment Letter as so amended, replaced, supplemented, or modified in accordance with this Section 5.16(a), and the term “Financing” shall mean the financing contemplated by the Financing Commitment Letter as so amended, replaced, supplemented or modifiedMerger.

Financing Commitments. Parent has delivered to the Company true and complete copies of (a) Parent shall use its commercially reasonable efforts an executed commitment letter from the MDCP Parties, J.X. Xxxxxx Ventures Corporation and LB I Group, Inc. to takeprovide equity financing in an aggregate amount set forth therein (the “Equity Funding Letters”) and (b) an executed commitment letter (the “Commitment Letter”) from Lxxxxx Brothers Commercial Bank, or cause Lxxxxx Commercial Paper Inc., Lxxxxx Brothers, Inc., Mxxxxx Sxxxxxx Senior Funding, Inc., JPMorgan Chase Bank, N.A. and J.X. Xxxxxx Securities Inc. to be takenprovide debt financing in an aggregate amount set forth therein (the “Debt Financing,” and, all actions together with the financing referred to in clause (a), the “Financing”). Each of the Equity Funding Letters and to do, or cause to be done, all things necessary, proper, or advisable to consummate and obtain the Financing on the terms and conditions described in the Financing Commitment Letter, including using commercially reasonable efforts to (i) maintain in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of the Financing Commitment LetterMDCP Parties, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub’s obtaining Sub and, to the Financing that are within their controlKnowledge of Parent, (iii) negotiate definitive agreements with respect thereto on the terms other parties thereto. Other than as permitted pursuant to Section 7.12(a), none of the Equity Funding Letters or the Commitment Letter has been materially amended or modified, no such material amendment or modification is contemplated, and conditions the respective commitments contained in the Financing Commitment Lettersuch letters have not been withdrawn, rescinded or terminated in any respect, and (iv) consummate the Financing at or prior to the Closing. Without the Company’s prior written consent (which consent shall not be unreasonably conditioned, withheld or delayed), neither Parent shall not, and shall not permit Merger nor Sub to, agree to or permit any amendment, replacement, supplement, or other modification of, or waive is in breach of any of its the material rights underterms or conditions set forth therein and no event has occurred which, the Financing Commitment Letter with or any definitive agreements related to the Financing Commitment Letter (including any and all fee letters)without notice, if such amendmentlapse of time or both, replacement, supplement or other modification or waiver would could reasonably be expected to prevent, materially delay, constitute a breach or materially impede failure to satisfy a material condition precedent set forth therein. Parent or Sub has fully paid any and all commitments or other fees required by the consummation Equity Funding Letters or the Commitment Letter that are due as of the Financing date hereof and will pay, after the date hereof, all such commitments and fees as they become due. Except for the payment of customary fees, there are no conditions precedent or other similar contractual contingencies related to the funding of the full amount of the Financing, other than as set forth in or contemplated by the Equity Funding Letters or the transactions Commitment Letter. The aggregate proceeds contemplated by this Agreement; the Equity Funding Letters and provided that, for the avoidance of doubt, Parent and Merger Sub may (without the prior consent of the Company) replace and amend the Financing Commitment Letter will be sufficient for Sub and the Surviving Corporation to add lenderspay the Aggregate Merger Consideration as contemplated by Section 3.1, lead arrangers, book runners, syndication agents, to make any payments required or similar entities that had not executed contemplated by Section 7.1 or Section 7.2 and to make any other repayment or refinancing of debt contemplated in the Financing Equity Funding Letters or the Commitment Letter as and to pay all related fees and expenses. As of the date of this Agreement, so long as Parent does not have any such addition would not reasonably be expected reason to prevent, materially hinder, or materially delay the consummation of the Financing or the transactions contemplated by this Agreement. Upon any such amendment, replacement, supplement, or modification of believe that any of the Financing Commitment Letter in accordance with this Section 5.16(a), the term “Financing Commitment Letter” shall mean conditions to the Financing Commitment Letter as so amended, replaced, supplemented, will not be satisfied or modified in accordance with this Section 5.16(a), and the term “Financing” shall mean the financing contemplated by that the Financing Commitment Letter as so amendedwill not be available to Sub on the Closing Date. There are no side letters or other agreements or arrangements relating to the Financing to which Parent, replaced, supplemented Sub or modifiedany of their Affiliates is a party.

Financing Commitments. (a) Parent shall will use its commercially reasonable efforts to takefully satisfy, or cause to be takenon a timely basis, all actions terms, conditions, representations and to do, or cause to be done, all things necessary, proper, or advisable to consummate and obtain the Financing on the terms and conditions described warranties set forth in the Financing Commitment Letter, including using Letters. Parent will use commercially reasonable efforts to (i) maintain in effect the Financing Commitment Letter, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub’s obtaining the Financing that are within their control, (iii) negotiate enter into definitive agreements with respect thereto to the financings contemplated by the Commitment Letters on the terms and conditions contained no less favorable to Parent in the Financing aggregate than the Commitment Letter, Letters and (iv) consummate the Financing on such other terms and conditions as shall be satisfactory to Parent as soon as commercially reasonable but in any event at or prior to the Closing. Without Parent will furnish correct and complete copies of such definitive agreements to the Company promptly following their execution. (b) At the Company’s request, Parent shall keep the Company reasonably informed with respect to all material activity concerning the status of the financings contemplated by the Commitment Letters. Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) any Commitment Letter shall expire or be terminated for any reason or (ii) any financing source that is a party to any Commitment Letter notifies Parent that such source no longer intends to provide financing to Parent on the material terms set forth therein. Parent shall not amend or alter, or agree to amend or alter, any Commitment Letter in any manner that would materially impair or delay or prevent the transactions contemplated by this Agreement without the prior written consent of the Company. (which consent shall not be unreasonably conditioned, withheld or delayed), Parent shall notc) The Company agrees to provide, and shall cause its Subsidiaries to provide, and shall use its reasonable best efforts to cause their respective Representatives to provide, Parent with such reasonable cooperation in connection with the arrangement of the financings contemplated by the Debt Commitment Letter as may be reasonably requested by Parent, including, but not permit Merger Sub limited to, agree (i) participation in meetings, drafting sessions, due diligence sessions, management presentation sessions, “road shows” and sessions with rating agencies, (ii) preparation of business projections and financial statements (including pro forma financial statements) as are reasonably requested by Parent in connection with the Debt Financing, (iii) assisting with the preparation of materials for rating agency presentations, offering memoranda, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing; provided that any private placement memoranda or prospectuses in relation to a debt securities offering shall be issued only by Parent or permit Merger Sub, (iv) execution and delivery of any amendmentpledge documents, replacementsecurity documents, supplementcredit agreements, guarantees or other modification offinancing documents, including any certificates, legal surveys, title insurance or waive other documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company with respect to solvency matters); provided, however that no obligation of the Company or any of its material rights underSubsidiaries under any such document, agreement or certificate shall be effective until the Financing Commitment Letter Effective Time (or any definitive agreements related immediately prior to the Financing Commitment Letter (including any and all fee lettersEffective Time, if necessary to facilitate the Debt Financing), if such amendment, replacement, supplement or other modification or waiver would reasonably (v) obtaining customary comfort letters of accountants and consents of accountants for use of their reports in any materials relating to the financing to be expected to prevent, materially delay, or materially impede the consummation of the Financing or used in connection with the transactions contemplated by this Agreement; , and provided that(vi) taking all corporate actions, for subject to the avoidance of doubt, Parent and Merger Sub may (without the prior consent occurrence of the Company) replace and amend the Financing Commitment Letter Closing, reasonably requested by Parent to add lenders, lead arrangers, book runners, syndication agents, or similar entities that had not executed the Financing Commitment Letter as of the date of this Agreement, so long as any such addition would not reasonably be expected to prevent, materially hinder, or materially delay permit the consummation of the Financing or the transactions contemplated by this AgreementDebt Financing. Upon any The Company shall also take such amendment, replacement, supplement, or modification of any further action as may be required to cause an independent auditor of the Financing Commitment Letter Company to provide any unqualified opinions, consents or customary comfort letters with respect to the financial statements. The Company shall allow Parent’s Representatives the opportunity to review and comment upon the financial statements (including pro forma financial statements) in accordance draft form and to allow such representatives access to the Company and supporting documentation with this Section 5.16(a), respect to the term “Financing Commitment Letter” shall mean the Financing Commitment Letter as so amended, replaced, supplemented, or modified in accordance with this Section 5.16(a), preparation of such financial statements and the term “Financing” shall mean the financing contemplated by the Financing Commitment Letter as so amended, replaced, supplemented or modifiedindependent auditors’ work papers relating to such financial statements.