Common use of Financing Obligation Clause in Contracts

Financing Obligation. HTI Acquisition will use its best efforts to do or cause to be done all things necessary to consummate the Acquisition Financing. HTI Acquisition shall use commercially reasonable efforts to cause the Equity Investors to comply with the terms of their respective Equity Commitment Letters and to cause HTI Holding to comply with the terms of the Commitment Letter. HTI Acquisition shall not, and shall use commercially reasonable efforts to cause the Equity Investors not to, amend or modify the terms of (i) the Commitment Letters (including all exhibits, annexes, schedules, fee letters and other ancillary documents) in a manner that would increase the conditionality of the Commitment Letters or in a manner that would adversely affect the ability of HTI Acquisition to consummate the transactions provided for herein or the likelihood of the Merger or (ii) the Equity Commitment Letters, in each case without the prior written consent of Alleghany. If funds in the amounts set forth in the Commitment Letters, or any portion thereof, become unavailable to HTI Acquisition on the terms and conditions set forth therein, HTI Acquisition shall use commercially reasonable efforts to obtain substitute financing ("Substitute Financing"). Prior to the Effective Time, HTI Acquisition will not amend or modify, or agree to amend or modify, any agreement or other document or plan, which, pursuant to the terms of the Commitment Letters, requires the lenders' prior consent to amend or is a condition to the lenders' obligations thereunder, without the prior written consent of the lenders party to the Commitment Letters and any other Person whose consent is required pursuant to the Commitment Letters, which consent(s) shall acknowledge that such amendment or modification does not relieve such lender or other Person of its obligations pursuant to the Commitment Letters. For the avoidance of doubt, nothing contained in this Agreement shall obligate any Equity Investor to provide any credit support, guarantee or other payment to the lenders in addition to those currently contained in the Commitment Letters (other than making their equity contributions pursuant to the Equity Commitment Letters) in connection with HTI Acquisition obtaining the Acquisition Financing or any Substitute Financing.

Financing Obligation. HTI Acquisition will (a) Fermat shall use its reasonable best efforts to do take, or cause to be done taken, all actions and to do, or cause to be done, all things necessary necessary, proper or advisable to arrange and consummate the Acquisition Financing. HTI Acquisition shall use commercially reasonable efforts to cause Financing in an amount that, when taken together with cash, cash equivalents and other current financial assets and other immediately available funds, would be sufficient for the Equity Investors to comply with the terms of their respective Equity Commitment Letters and to cause HTI Holding to comply with the terms satisfaction of the Commitment Letter. HTI Acquisition shall not, and shall use commercially reasonable efforts to cause the Equity Investors not to, amend or modify the terms of (i) the Commitment Letters Fermat Group’s payment obligations under this Agreement (including all exhibits, annexes, schedules, fee letters and other ancillary documents) in a manner that would increase the conditionality payment of the Commitment Letters or in a manner Cash Balancing Amount) that would adversely affect are due and payable on the ability of HTI Acquisition to consummate the transactions provided for herein or the likelihood of the Merger or Closing Date. Fermat shall not (ii) the Equity Commitment Letters, in each case without the prior written consent of Alleghany. If funds in the amounts set forth in the Commitment LettersDescartes, which consent shall not be unreasonably withheld, delayed or conditioned) consent or agree to any amendment or modification to, or any portion thereofwaiver of any provision under, become unavailable or terminate or replace the Debt Commitment Letter or the definitive agreements relating to HTI Acquisition the Debt Financing, if such amendment, modification, waiver, termination or replacement (i) decreases the aggregate amount of the Debt Financing to an amount that, when taken together with any remaining commitments for the Debt Financing, any commitment for Financing with conditionality not materially less favorable to Fermat than the conditionality under the Debt Commitment Letter, cash, cash equivalents and other current financial assets and other immediately available funds, would be insufficient for the satisfaction of Fermat’s payment obligations under this Agreement (including payment of the Cash Balancing Amount) that are due and payable on the terms and Closing Date or (ii) imposes new or additional material conditions set forth therein, HTI Acquisition shall use commercially reasonable efforts to obtain substitute financing ("Substitute Financing"). Prior or otherwise materially expands any of the conditions to the Effective Timereceipt of the Debt Financing or otherwise would or would reasonably be expected to prevent or materially delay the funding or financing described therein or the consummation of the transactions contemplated by this Agreement; provided, HTI Acquisition will not amend or modifythat, for the avoidance of doubt Fermat shall be permitted to consent or agree to amend any amendment or modifymodification, or any agreement waiver of any provision, under the Debt Commitment Letter if such amendment, modification or other document waiver solely adds lenders, lead arrangers, bookrunners, syndication agents or plan, which, pursuant to 1414958.12A-NYCSR03A - MSW similar entities that have not executed the terms Debt Commitment Letter as of the Commitment Letters, requires date hereof as parties thereto. Each of Fermat and Descartes acknowledges and agrees that Fermat’s obligation to consummate the lenders' prior consent transactions contemplated hereby is not subject to amend a financing condition under Article VII or is a condition to the lenders' obligations thereunder, without the prior written consent of the lenders party to the Commitment Letters and any other Person whose consent is required pursuant to the Commitment Letters, which consent(s) shall acknowledge that such amendment or modification does not relieve such lender or other Person of its obligations pursuant to the Commitment Letters. For the avoidance of doubt, nothing contained in this Agreement shall obligate any Equity Investor to provide any credit support, guarantee or other payment to the lenders in addition to those currently contained in the Commitment Letters (other than making their equity contributions pursuant to the Equity Commitment Letters) in connection with HTI Acquisition obtaining the Acquisition Financing or any Substitute Financingotherwise.

Financing Obligation. HTI Acquisition will (a) Buyer shall, and shall cause its applicable Subsidiaries to, use its reasonable best efforts to do obtain the Debt Financing on a timely basis and on the terms and conditions in the Debt Financing Commitment in an amount sufficient, taken together with Other Available Funds, to satisfy the Required Amount, including (i) complying with its obligations under the applicable Debt Financing Commitments, (ii) maintaining in effect the applicable Debt Financing Commitments or cause to be done all things necessary to consummate the Acquisition Financing. HTI Acquisition shall use commercially reasonable efforts to cause the Equity Investors to comply definitive financing agreements related thereto in accordance with the terms and conditions thereof, (iii) negotiating and entering into definitive agreements with respect to the applicable Debt Financing Commitments on a timely basis on terms and conditions (including the flex provisions) contained therein or otherwise not materially less favorable to Buyer in the aggregate than those contained in the applicable Debt Financing Commitments, (iv) satisfying on a timely basis all conditions applicable to Buyer and/or its Subsidiaries contained in the applicable Debt Financing Commitments (or any definitive agreements related thereto) within their control, including the payment of their respective Equity Commitment Letters any commitment, engagement or placement fees required as a condition to the Debt Financing and (v) enforcing all of its rights under the applicable Debt Financing Commitments (or any definitive agreements related thereto) (provided that Buyer shall not be required to cause HTI Holding pursue such enforcement through litigation) and consummating the applicable Debt Financing at or prior to comply the Closing. Buyer shall keep Seller informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing (including, upon reasonable request, providing Seller with copies of all definitive agreements and other documents related to the Debt Financing and of material developments concerning the timing of the closing of the Debt Financing). Buyer shall give Seller prompt written notice (A) upon having knowledge of any violation, breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any violation, breach or default) by any party to any of the Debt Financing Commitments or any termination of any of the Debt Financing Commitments, (B) any actual or threatened reduction, withdrawal, repudiation or termination of the Debt Financing by any Financing Source party to the Debt Financing Commitments or (C) if for any reason Buyer has determined in good faith that it will not be able to obtain all or any portion of the Debt Financing on the terms contemplated by the applicable Debt Financing Commitments. As soon as reasonably practicable, but in any event within two Business Days following delivery by Seller to Buyer of written request therefor, Buyer shall provide any information reasonably requested by Seller relating to any circumstance referred to in clauses (A) through (C) of the immediately preceding sentence. Notwithstanding the foregoing, it is understood and agreed that the obligations of Buyer with respect to the Debt Financing pursuant to this Section 5.19(a) shall be subject to, and shall not be deemed to be breached by, any reduction, including to zero as applicable, of the commitments in respect of the Debt Financing in accordance with the terms of the Commitment Letter. HTI Acquisition shall notDebt Financing Commitments as in effect on the date of this Agreement, and shall use commercially reasonable efforts to cause as a result of the Equity Investors not to, amend or modify the terms receipt of net proceeds of (i) any Permanent Financing or obtaining of commitments with respect to the Commitment Letters same (including all exhibitsin each case, annexes, schedules, fee letters to the extent permitted hereunder) and other ancillary documents) in a manner that would increase the conditionality of the Commitment Letters or in a manner that would adversely affect the ability of HTI Acquisition to consummate the transactions provided for herein or the likelihood of the Merger or (ii) the Equity Commitment Letters, in each case without the prior written consent of Alleghany. If funds in the amounts set forth in the Commitment Letters, or any portion thereof, become unavailable to HTI Acquisition on the terms and conditions set forth therein, HTI Acquisition shall use commercially reasonable efforts to obtain substitute financing ("Substitute Financing"). Prior certain dispositions to the Effective Time, HTI Acquisition will not amend or modify, or agree to amend or modify, any agreement or other document or plan, which, pursuant to extent required in accordance with the terms of the Debt Commitment Letters, requires Letter as in effect on the lenders' prior consent to amend or is a condition date hereof and to the lenders' obligations thereunder, without extent such proceeds will be used to fund the prior written consent of Required Amount on the lenders party to the Commitment Letters and any other Person whose consent is required pursuant to the Commitment Letters, which consent(s) shall acknowledge that such amendment or modification does not relieve such lender or other Person of its obligations pursuant to the Commitment Letters. For the avoidance of doubt, nothing contained in this Agreement shall obligate any Equity Investor to provide any credit support, guarantee or other payment to the lenders in addition to those currently contained in the Commitment Letters (other than making their equity contributions pursuant to the Equity Commitment Letters) in connection with HTI Acquisition obtaining the Acquisition Financing or any Substitute FinancingClosing Date.

Financing Obligation. HTI Acquisition will use its best efforts (a) No later than 12:00 pm New York City Time on August 15, 2005 (the "MARKETING PERIOD"), Buyer shall duly execute and deliver to do or cause Lender and Banc of America Securities LLC (with a copy to be done all things necessary Seller) each of the BofA Financing Documents; PROVIDED, HOWEVER, that prior to consummate the Acquisition Financing. HTI Acquisition end of the Marketing Period Buyer shall use commercially have the right to enter into alternative financing arrangements if (i) during the Marketing Period Buyer is able to obtain a commitment from a nationally recognized financial institution (the "ALTERNATE LENDER") for alternative financing for at least $1,000,000,000.00 and which is on terms no less favorable to Buyer and Seller than the BofA Financing Documents; (ii) Buyer provides to Seller the final versions of such documents with a reasonable efforts time to cause the Equity Investors to comply with the terms of their respective Equity Commitment Letters and to cause HTI Holding to comply with review them; (iii) Seller determines that the terms of the alternative financing documents do not contain any conditions to the financing not included in the BofA Financing Documents and are otherwise as favorable to Seller's interests as the BofA Financing Documents (such determination to be evidenced in writing by Seller delivered to Buyer and not to be unreasonably withheld, delayed or conditioned); and (iv) simultaneous with the execution by Buyer and any of its Affiliates and the Alternate Lender and any of its Affiliates of the Alternate Financing Documents, Buyer provides Seller with the Alternate Financing Commitment Letter. HTI Acquisition Certificate duly executed by the Chief Financial Officer or General Counsel of Buyer; PROVIDED, FURTHER, that Buyer shall not, and shall use commercially reasonable efforts be entitled to cause the Equity Investors not to, amend or modify the terms of (i) BofA Financing Documents prior to the Commitment Letters (including all exhibits, annexes, schedules, fee letters and other ancillary documents) in a manner that would increase the conditionality end of the Commitment Letters or in a manner that would adversely affect the ability of HTI Acquisition to consummate the transactions provided for herein or the likelihood of the Merger or (ii) the Equity Commitment Letters, in each case without Marketing Period upon obtaining the prior written consent of AlleghanySeller of such modifications (which consent shall not be unreasonably withheld, delayed or conditioned). If funds The obtaining of the alternative financing described in this SECTION 7.13(A) shall be referred to as the amounts set forth in "ALTERNATE FINANCING" and the Commitment Letters, documents executed by Buyer or any portion thereof, become unavailable to HTI Acquisition on the terms and conditions set forth therein, HTI Acquisition shall use commercially reasonable efforts to obtain substitute financing ("Substitute Financing"). Prior to the Effective Time, HTI Acquisition will not amend or modify, or agree to amend or modify, any agreement or other document or plan, which, pursuant to the terms of the Commitment Letters, requires the lenders' prior consent to amend or is a condition to the lenders' obligations thereunder, without the prior written consent of the lenders party to the Commitment Letters and any other Person whose consent is required pursuant to the Commitment Letters, which consent(s) shall acknowledge that such amendment or modification does not relieve such lender or other Person of its obligations pursuant to Affiliates and the Commitment Letters. For the avoidance Alternate Lender or any of doubt, nothing contained in this Agreement shall obligate any Equity Investor to provide any credit support, guarantee or other payment to the lenders in addition to those currently contained in the Commitment Letters (other than making their equity contributions pursuant to the Equity Commitment Letters) its Affiliates in connection with HTI Acquisition obtaining the Acquisition Alternate Financing or any Substitute Financingshall be referred to as the "ALTERNATE FINANCING DOCUMENTS."