Common use of Parent’s Financing Clause in Contracts

Parent’s Financing. (a) From the date hereof and continuing until the closing of the Offer and the Merger, Parent shall take, or cause to be taken, all reasonable actions to ensure that (i) the representation made in Section 6.8 of this Agreement is true and correct, and (ii) that Parent has sufficient liquid funds (through cash on hand, credit arrangements or otherwise) to pay all amounts payable by Parent hereunder, including, but not limited to, payment of the aggregate Offer Price and the Merger Consideration, (2) will have sufficient liquid funds (through cash on hand, credit arrangements or otherwise) to make all other necessary payments of fees and expenses in connection with the Offer, the Merger and the other transactions contemplated hereby, when and to the extent such payments are due from it, and (3) will have sufficient liquid funds (through cash on hand, credit arrangements or otherwise) to perform and discharge its obligations under this Agreement and in connection with the Offer, the Merger and the other transactions contemplated hereby, when and to the extent such obligations are required to be performed and discharged. (b) None of Parent, Merger Sub and their respective Affiliates shall take, or cause to be taken, or facilitate or intentionally encourage, directly or indirectly, any action that would, or would be reasonably likely to, have the effect of impeding, frustrating or interfering with their ability to finance the Offer, the Merger and the other transactions contemplated hereby. (c) Parent shall keep the Company reasonably apprised of the progress in effectuating its financing of the Offer, the Merger and the other transactions contemplated hereby, and promptly upon receipt thereof, shall furnish the Company with copies of any and all proposed and executed amendments to the Commitment Letter or other material financing agreements and such Commitment Letter and other financing agreements, as so amended, shall not contain any conditions to closing of the financing (“New Financing Conditions”) that were not contained in the Commitment Letter provided to the Company prior to the date hereof unless the New Financing Conditions are consented to in writing by the Company in its sole discretion. (d) Promptly upon receipt by Parent, Parent shall deliver, or cause to be delivered, to the Company a true, correct and complete copy of the Commitment Letter, or other material financing agreements, entered into by Parent and/or Merger Sub after the date hereof and relating to the Offer, the Merger and the other transactions contemplated hereby. (e) The Company will file its Current Report on Form 10-Q for the quarter ended January 30, 2011 no later than March 11, 2011. (f) The Company shall provide, and shall cause its Subsidiaries to provide, and shall use its commercially reasonable efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to provide, all cooperation reasonably requested by Parent and/or the Lenders in connection with the financing transaction contemplated by the Commitment Letter; provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries) and that, until the Effective Time occurs, neither the Company nor any of its Subsidiaries shall (1) be required to pay any commitment or other similar fee, (2) make any representations or warranties to, or enter into any agreement, arrangement or understanding with any Lenders or other financing source or take any actions that could be reasonably expected to have any potentially adverse effect on the Company or any Subsidiary thereof, (3) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to the financing contemplated by the Commitment Letter, or (4) be required to incur any other liability or obligation in connection with such financing; provided, further, that (I) all non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 7.18(f) shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Merger Sub shall be permitted to disclose such information to potential investors during syndication, subject to customary confidentiality undertakings by such potential investors and (II) the Company and its legal counsel shall be permitted a reasonable period to comment on any documents or other information circulated to potential financing sources that contain or are based upon any such non-public or other confidential information. Parent (A) shall promptly, upon request by the Company, reimburse the Company for all reasonable out of pocket costs (including reasonable attorneys’ fees) incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries and their Representatives contemplated by this Section 7.18, (B) acknowledges and agrees that the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any person prior to the Effective Time under, the financing contemplated by the Commitment Letter and (C) shall indemnify and hold harmless the Company, its Subsidiaries and their respective 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 such financing and any information used in connection therewith. The indemnity provided for in the foregoing sentence shall be an independent obligation of Parent and shall not be offset against any obligations owed to it hereunder.

Parent’s Financing. (a) From the date hereof Parent’s Actions. (i) Parent will use reasonable best efforts to, and continuing until the closing of the Offer and the Mergerwill use reasonable best efforts to cause its Subsidiaries to, Parent shall take, or cause to be taken, all reasonable actions to ensure that (i) the representation made in Section 6.8 of this Agreement is true and correctactions, and (ii) that Parent has sufficient liquid funds (through cash on hand, credit arrangements or otherwise) to pay all amounts payable by Parent hereunder, including, but not limited to, payment of the aggregate Offer Price and the Merger Consideration, (2) will have sufficient liquid funds (through cash on hand, credit arrangements or otherwise) to make all other necessary payments of fees and expenses in connection with the Offer, the Merger and the other transactions contemplated hereby, when and to the extent such payments are due from it, and (3) will have sufficient liquid funds (through cash on hand, credit arrangements or otherwise) to perform and discharge its obligations under this Agreement and in connection with the Offer, the Merger and the other transactions contemplated hereby, when and to the extent such obligations are required to be performed and discharged. (b) None of Parent, Merger Sub and their respective Affiliates shall takedo, or cause to be takendone, all things necessary to consummate on the terms and conditions described in the Debt Financing Commitment, the Debt Financing, on or prior to the Closing Date. Such reasonable best efforts will include taking the following actions: (A) complying with all obligations under, and maintaining in effect, the Debt Financing Commitment, (B) arranging and obtaining the proceeds of the Debt Financing on the terms and conditions (including any “flex” provisions) set forth in the Debt Financing Commitment or, if available, on other terms that are acceptable to Parent and as permitted under this Agreement, (C) negotiating and entering into definitive agreements with respect to the Debt Financing, including the terms and conditions contained in the Debt Financing Commitment (including any “flex” provisions) so that such agreements are in effect no later than the Closing, (D) satisfying on a timely basis all the conditions to the Debt Financing and the definitive agreements related thereto that are within its control and (E) drawing the full amount of the Debt Financing Proceeds to the extent the funds are necessary at Closing to pay the Aggregate Merger Consideration (less the Aggregate Parent Stock Value and less the Aggregate Exercise Price), the Payoff Amount and the Selling Expenses, and (F) enforcing its rights under the Debt Commitment Letter and the Debt Financing Documents in order to consummate the Debt Financing at or prior to the Closing including in the event of a breach by any lender providing such Debt Financing that impedes or delays the Closing. 76 (ii) Parent will, as promptly as reasonably practicable after obtaining knowledge thereof, give the Company written notice of any (A) actual material breach or default or termination by a Financing Party under the Debt Financing Commitment, (B) amendment or modification of, or facilitate waiver under, the Debt Financing Commitment or intentionally encourage(C) change or event which causes Parent to believe that it will not be able to timely obtain all or any portion of the Debt Financing on the terms, directly in the manner or indirectlyfrom the Financing Parties contemplated by the definitive documents related to the Debt Financing. Parent and its Subsidiaries will not amend, modify or supplement the Debt Financing Commitment or any action related fee letters without the prior written approval of the Company (which shall not be unreasonably conditioned, withheld or delayed), in each case, if such amendment, modification or supplement would (1) reduce the aggregate amount of the Debt Financing below the amount required to consummate the transactions contemplated by this Agreement, (2) impose new or additional conditions or otherwise expand, amend or modify any of the conditions that wouldwould reasonably be expected to materially delay or prevent the funding of the Debt Financing on the Closing Date, or would be reasonably likely to(3) adversely impact the ability of Parent to enforce its rights against the Financing Parties; provided, that Parent may modify, amend or supplement the Debt Financing Commitment to (A) correct typographical errors or mistakes, (B) add lenders, arrangers, bookrunners, agents or similar entities or titles that have not executed the Debt Financing Commitment as of the date hereof or amend titles, allocations and fee sharing arrangements in connection therewith or (C) increase the amount of the Debt Financing. Notwithstanding any of the foregoing, Parent shall have the effect right to reduce the commitments under the Debt Financing Commitment on a dollar-for-dollar basis with the net proceeds of impeding, frustrating consummated offerings or interfering with their ability other incurrences of any debt for borrowed money incurred after the date of this Agreement for the purpose of financing payment of the Aggregate Merger Consideration and other amounts payable by Parent or its Subsidiaries pursuant to finance the Offer, the Merger this Agreement and the other transactions contemplated hereby. (c) Transaction Documents to which Parent shall keep is a party. In the event that new commitment letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Debt Financing Commitment permitted pursuant to this Section ‎6.11, such new commitment letters will be deemed to be a part of the “Debt Financing” and deemed to be the “Debt Financing Commitment” for all purposes of this Agreement. Parent will promptly deliver to the Company reasonably apprised of the progress in effectuating its financing of the Offer, the Merger and the other transactions contemplated hereby, and promptly upon receipt thereof, shall furnish the Company with copies of any termination, amendment, modification, waiver or replacement of the Debt Financing Commitment. In the event that funds in the amounts set forth in the Debt Financing Commitment, or any portion thereof, become unavailable to it on the terms and all proposed and executed amendments to the Commitment Letter or other material financing agreements and such Commitment Letter and other financing agreementsconditions set forth therein (including, as so amendednecessary, shall any “flex” provisions), Parent will, as promptly as practicable following the occurrence of such event, (x) notify the Company in writing thereof, (y) use its reasonable best efforts to obtain substitute financing (i) in an amount sufficient to consummate the transactions contemplated hereunder, (ii) that would not contain involve any conditions to closing of funding the financing (“New Debt Financing Conditions”) that were are not contained in the Debt Financing Commitment Letter provided and (iii) that would not prevent, impede or delay the consummation of the transactions contemplated hereunder beyond the Closing Date required to be effected under this Agreement (the “Substitute Financing”) and obtain a new financing commitment letter that provides for such Substitute Financing and, promptly after execution thereof, deliver to the Company prior to true, complete and correct copies of the date hereof unless new commitment letter and the New Financing Conditions are consented to related fee letters (in writing by redacted form removing commercially sensitive information therein, including the Company in its sole discretion. (d) Promptly upon receipt by Parentfee information and “flex” provisions). Upon obtaining any commitment for any such Substitute Financing, Parent shall deliver, or cause such financing will be deemed to be delivered, to the Company a true, correct and complete copy part of the Commitment Letter, or other material financing agreements, entered into by Parent and/or Merger Sub after the date hereof “Debt Financing” and relating to the Offer, the Merger and the other transactions contemplated hereby. (e) The Company will file its Current Report on Form 10-Q for the quarter ended January 30, 2011 no later than March 11, 2011. (f) The Company shall provide, and shall cause its Subsidiaries to provide, and shall use its commercially reasonable efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to provide, all cooperation reasonably requested by Parent and/or the Lenders in connection with the financing transaction contemplated by the Commitment Letter; provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries) and that, until the Effective Time occurs, neither the Company nor any of its Subsidiaries shall (1) be required to pay any commitment or other similar fee, (2) make any representations or warranties to, or enter into any agreement, arrangement or understanding with any Lenders or other financing source or take any actions that could letter for such Substitute Financing will be reasonably expected to have any potentially adverse effect on deemed the Company or any Subsidiary thereof, (3) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to the financing contemplated by the Commitment Letter, or (4) be required to incur any other liability or obligation in connection with such financing; provided, further, that (I) all non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 7.18(f) shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Merger Sub shall be permitted to disclose such information to potential investors during syndication, subject to customary confidentiality undertakings by such potential investors and (II) the Company and its legal counsel shall be permitted a reasonable period to comment on any documents or other information circulated to potential financing sources that contain or are based upon any such non-public or other confidential information. Parent (A) shall promptly, upon request by the Company, reimburse the Company “Debt Financing Commitment” for all reasonable out purposes of pocket costs (including reasonable attorneys’ fees) incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries and their Representatives contemplated by this Section 7.18, (B) acknowledges and agrees that the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any person prior to the Effective Time under, the financing contemplated by the Commitment Letter and (C) shall indemnify and hold harmless the Company, its Subsidiaries and their respective 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 such financing and any information used in connection therewithAgreement. The indemnity provided for in the foregoing sentence shall be an independent obligation of Parent and shall not be offset against any obligations owed to it hereunder.77

Parent’s Financing. (ai) From the date hereof and continuing until the closing of the Offer and the Merger, Parent shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions to ensure that (i) the representation made in Section 6.8 of this Agreement is true and correct, and (ii) that Parent has sufficient liquid funds (through cash on hand, credit arrangements or otherwise) to pay all amounts payable by Parent hereunder, including, but not limited to, payment of the aggregate Offer Price and the Merger Consideration, (2) will have sufficient liquid funds (through cash on hand, credit arrangements or otherwise) to make all other necessary payments of fees and expenses in connection with the Offer, the Merger and the other transactions contemplated hereby, when and to the extent such payments are due from it, and (3) will have sufficient liquid funds (through cash on hand, credit arrangements or otherwise) to perform and discharge its obligations under this Agreement and in connection with the Offer, the Merger and the other transactions contemplated hereby, when and to the extent such obligations are required to be performed and discharged. (b) None of Parent, Merger Sub and their respective Affiliates shall takedo, or cause to be taken, or facilitate or intentionally encourage, directly or indirectly, any action that would, or would be reasonably likely to, have the effect of impeding, frustrating or interfering with their ability to finance the Offer, the Merger and the other transactions contemplated hereby. (c) Parent shall keep the Company reasonably apprised of the progress in effectuating its financing of the Offer, the Merger and the other transactions contemplated hereby, and promptly upon receipt thereof, shall furnish the Company with copies of any and all proposed and executed amendments to the Commitment Letter or other material financing agreements and such Commitment Letter and other financing agreementsdone, as so amendedpromptly as possible, shall not contain any all things necessary, proper or advisable to arrange and obtain Parent’s Financing on the terms and conditions to closing of the financing (“New Financing Conditions”) that were not contained described in the Commitment Letter provided to Letters, including maintaining in effect the Company prior to the date hereof unless the New Financing Conditions are consented to in writing by the Company in its sole discretion. Commitment Letters and using reasonable best efforts to, as promptly as possible, (dx) Promptly upon receipt by Parent, Parent shall deliversatisfy, or cause to be deliveredsatisfied (or, if deemed advisable by Parent, seek the waiver of), on a timely basis all conditions to Parent obtaining Parent’s Financing (including by consummating the Equity Financing pursuant to the terms of the Equity Commitment Letter) that are required to be satisfied by Parent and its Subsidiaries (including, after (i) satisfaction of the conditions set forth in Section 8.1 and Section 8.2 (other than any condition that by its nature cannot be satisfied until the Closing) and (ii) commencement of the Marketing Period, commencing the “marketing period” described in the Debt Commitment Letter), (y) negotiate and enter into definitive agreements with respect to the Parent’s Financing on the terms and conditions contemplated by the Debt Commitment Letter (including any related flex provisions) or on other terms that are acceptable to Parent’s Financing Sources (such definitive agreements related to Parent’s Debt Financing, collectively, with the Debt Commitment Letter, the “Debt Documents”), and (z) assuming that all conditions contained in any Commitment Letter have been satisfied, consummate Parent’s Financing at or prior to the Closing. (ii) Parent shall give the Company a trueand Carve-out Buyer prompt notice (v) of any material breach or material default by any party to any Commitment Letter or other Debt Document of which Parent becomes aware, correct (w) if and complete copy when Parent becomes aware that any portion of the Financing contemplated by any Commitment Letter that is necessary to consummate the Closing will not be available for the Financing Purposes, (x) of the receipt of any written notice or other written communication from any Person with respect to any material breach, material default, termination or repudiation by any party to any Commitment Letter or other Debt Document, (y) if for any reason Parent or any of its Affiliates believes in good faith that it will not be able to obtain any portion of Parent’s Financing (i) subject to the conditions contemplated in the Commitment Letter, or other material financing agreements, entered into by Parent and/or Merger Sub after the date hereof and relating to the Offer, the Merger and the other transactions contemplated hereby. (eii) The Company will file its Current Report on Form 10-Q in an amount that is sufficient for the quarter ended January 30, 2011 no later than March 11, 2011. (f) The Company shall provide, and shall cause its Subsidiaries to provide, and shall use its commercially reasonable efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to provide, all cooperation reasonably requested by Parent and/or the Lenders in connection with the financing transaction contemplated by the Commitment Letter; provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries) and that, until the Effective Time occurs, neither the Company nor any of its Subsidiaries shall (1) be required to pay any commitment or other similar feeFinancing Purposes, (2iii) make any representations or warranties to, or enter into any agreement, arrangement or understanding with any Lenders or other financing source or take any actions that could be reasonably expected to have any potentially adverse effect on within the Company or any Subsidiary thereof, (3) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to the financing timing contemplated by the Commitment Letter, or (4iv) from the sources contemplated by any Commitment Letter and (z) of any expiration or termination of any Commitment Letter or other Debt Document. (iii) If any portion of Parent’s Financing that is necessary to consummate the Closing becomes, or would reasonably be required expected to incur become, unavailable on the terms and conditions contemplated in the applicable Commitment Letter (after taking into account flex terms), Parent shall use its reasonable best efforts to arrange to obtain alternative equity or debt financing, including from alternative sources, in an amount sufficient to replace any unavailable portion of its Financing (“Parent Alternative Financing”) as promptly as practicable following the occurrence of such event, and the provisions of this Section 7.13(a), Section 10.6 and Section 10.10 shall be applicable to the Parent Alternative Financing, and, for the purposes of this Agreement, all references to Parent’s Financing and Parent’s Debt Financing shall be deemed to include such Parent Alternative Financing, all references to Debt Documents shall include the applicable documents for the Parent Alternative Financing and all references to the Financing Sources shall include the Persons providing or arranging the Parent Alternative Financing. (iv) Parent shall (x) comply in all material respects with the Equity Commitment Letter and each of the Debt Documents, (y) enforce in all material respects its rights under the Equity Commitment Letter and each of the Debt Documents, and (z) not permit, without the prior written consent of the Company, (1) any amendment or modification to be made to, or any termination, rescission or withdrawal of, or any waiver of any provision or remedy under, the Equity Commitment Letter or (2) any material amendment or modification to be made to, or any material waiver of, any provision or remedy under, any Debt Document, or any termination, rescission or withdrawal of any Debt Document if, in the case of clause (2), such amendment, modification or waiver (individually or in the aggregate with any other liability amendments, modifications or obligation waivers) or such termination, rescission or withdrawal, would (A) reduce the aggregate amount of Parent’s Financing under any Debt Document to an amount that is insufficient for the Financing Purposes (except to the extent there is a corresponding increase to the Equity Financing) or (B) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of Parent’s Financing in connection with such financing; provided, further, a manner that would reasonably be expected to (I) all non-public materially delay or other confidential information provided by prevent the Company or any of its Representatives pursuant to this Section 7.18(f) shall be kept confidential in accordance with the Confidentiality AgreementClosing, except that Parent and Merger Sub shall be permitted to disclose such information to potential investors during syndication, subject to customary confidentiality undertakings by such potential investors and (II) make the Company funding of any portion of Parent’s Financing (or satisfaction of any condition to obtaining any portion of Parent’s Financing) materially less likely to occur or (III) materially and adversely impact the ability of Parent to enforce its legal counsel shall be permitted a reasonable period rights against any other party to comment on any documents Debt Document, the ability of Parent to consummate the Transactions or the likelihood of the consummation of the Transactions. Notwithstanding the foregoing, Parent may agree to or permit any amendment, supplement or other information circulated modification to potential be made to, or any waiver of any provision or remedy under, or any termination, rescission or withdrawal of, any Commitment Letter or Debt Document and may obtain equity or debt financing sources that contain in substitution of all or are based upon a portion of the Financing so long as any such non-public or other confidential information. Parent (A) shall promptly, upon request by the Company, reimburse the Company for all reasonable out of pocket costs (including reasonable attorneys’ fees) incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries and their Representatives contemplated by action does not violate this Section 7.18, 7.13. (Bv) Parent acknowledges and agrees that the Companyobtaining of Parent’s Financing, or any Parent Alternative Financing, is not a condition to Closing and reaffirms its Subsidiaries obligation to consummate the transactions contemplated by this Agreement irrespective and their respective Representatives independently of the availability of Parent’s Financing or any Parent Alternative Financing, subject to fulfillment or waiver of the conditions set forth in Article VIII. (vi) Notwithstanding anything to the contrary in this Agreement, Parent shall not have be required to seek the Equity Financing from any responsibility forsource other than the equity investor counterparty to, or incur in any liability to any person prior to the Effective Time underamount in excess of that contemplated by, the financing Equity Commitment Letter, or pay any material fees in excess of those contemplated by the Equity Commitment Letter and or the Debt Commitment Letter or agree to economic terms materially less favorable than those contained thereunder. (Cvii) For the avoidance of doubt, the obligations contained in this Section 7.13(a) shall indemnify and hold harmless terminate upon the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any occurrence of them in connection with the arrangement of such financing and any information used in connection therewith. The indemnity provided for in the foregoing sentence shall be an independent obligation of Parent and shall not be offset against any obligations owed to it hereunderClosing.

Parent’s Financing. (a) From Parent acknowledges and agrees that the date hereof Company and continuing until its Affiliates have no responsibility for any financing that Parent may raise in connection with the closing of the Offer and the Merger, Transactions. (b) Parent shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions to ensure that (i) the representation made in Section 6.8 of this Agreement is true and correct, and (ii) that Parent has sufficient liquid funds (through cash on hand, credit arrangements or otherwise) to pay all amounts payable by Parent hereunder, including, but not limited to, payment of the aggregate Offer Price and the Merger Consideration, (2) will have sufficient liquid funds (through cash on hand, credit arrangements or otherwise) to make all other necessary payments of fees and expenses in connection with the Offer, the Merger and the other transactions contemplated hereby, when and to the extent such payments are due from it, and (3) will have sufficient liquid funds (through cash on hand, credit arrangements or otherwise) to perform and discharge its obligations under this Agreement and in connection with the Offer, the Merger and the other transactions contemplated hereby, when and to the extent such obligations are required to be performed and discharged. (b) None of Parent, Merger Sub and their respective Affiliates shall takedo, or cause to be takendone, all things necessary, proper or advisable to obtain the Debt Financing contemplated by the Debt Financing Commitments on the terms and conditions set forth in the Debt Commitment Letter on or prior to the Closing Date, including to (i) maintain in effect and comply with the Debt Financing and the Debt Commitment Letter in accordance with the terms and subject to the conditions thereof, (ii) negotiate and enter into definitive financing agreements (the “Definitive Debt Documents”) with respect to the Debt Financing that are on terms and conditions no less favorable to Parent than those contained in the Debt Financing Commitments (giving effect to any “market flex” provisions in the Fee Letter), so that such agreements are in effect as promptly as practicable but in any event no later than the Closing Date, (iii) satisfy on a timely basis all conditions applicable to Parent contained in the Debt Financing Commitments within their control, including the payment of any commitment, engagement, or facilitate placement fees required as a condition to the Debt Financing, (iv) consummate the Debt Financing at or intentionally encourageprior to the date that the Closing is required to be effected in accordance with Section 1.3 (Parent acknowledges and agrees that it is not a condition to Closing under this Agreement, directly nor to the consummation of the Transactions, for Parent to obtain the Debt Financing or indirectlyany Replacement Financing), any action that would, or would be reasonably likely to, have (v) enforce its rights under the effect of impeding, frustrating or interfering with their ability to finance the Offer, the Merger Debt Commitment Letter and the definitive agreements relating to the Debt Financing, and (vi) otherwise comply with its covenants and other transactions contemplated herebyobligations under the Debt Commitment Letter. (c) Parent shall provide to the Company copies of all material agreements relating to the Debt Financing and shall keep the Company reasonably apprised informed on a current basis (including by providing drafts of any such material agreements from time to time, including upon request of Company) and in reasonable detail of material developments in respect of the progress in effectuating its financing process relating thereto. Without limiting the generality of the Offerforegoing, the Merger and the other transactions contemplated hereby, and promptly upon receipt thereof, Parent shall furnish provide the Company with copies prompt written notice (i) of any and all proposed and executed amendments expiration or termination of, or any breach, default, cancellation or violation by any party to the Debt Commitment Letter or definitive agreements related to the Debt Financing of which Parent becomes aware, (ii) of the receipt of (A) any written notice or (B) other material financing agreements and such communication, in each case from any Financing Source with respect to any (I) actual or potential breach, default, violation, termination or repudiation by any party to the Debt Commitment Letter and other financing agreements, as so amended, shall not contain or definitive agreements related to the Debt Financing of any conditions to closing provision of the financing (“New Financing Conditions”) that were not contained in the Debt Commitment Letter provided or definitive agreements related to the Company prior Debt Financing, (II) material dispute or disagreement between or among any parties to the date hereof unless Debt Commitment Letter or definitive agreements related to the New Debt Financing Conditions are consented with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded at the Closing, and (iii) if at any time for any reason Parent believes in writing good faith that it will not be able to obtain all or any portion of the Debt Financing on the terms and conditions contemplated by the Debt Financing Commitment or definitive agreements related to the Debt Financing. As soon as reasonably practicable, Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in its sole discretionclause “(i),” “(ii)” or “(iii)” of the immediately preceding sentence. (d) Promptly upon receipt by ParentPrior to the Closing, Parent shall delivernot, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed, or cause conditioned), agree to, or permit, any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under, the Debt Commitment Letter or other documentation relating to the Debt Financing which would (i) reasonably be expected to adversely affect Parent’s ability to timely consummate the Transactions, (ii) reduce the aggregate amount of the Debt Financing, (iii) impose new or additional conditions or expand upon (or amend or modify in any manner adverse to the interests of the Company) the conditions precedent to the Debt Financing as set forth in the Debt Commitment Letter, (iv) adversely affect the ability of Parent to enforce its rights against the other parties to the Debt Financing Commitments, the Fee Letter or any Definitive Debt Document, or (v) reasonably be expected to prevent, delay, impeded or impair the Closing provided, that the Debt Commitment Letter may be amended to join additional lead arrangers and initial lenders in accordance with the terms thereof without the prior written consent of the Company. For purposes of this Section 7.13, the definitions of “Debt Commitment Letter,” “Debt Financing Commitments,” and “Debt Financing,” shall include the Debt Financing Commitments or documents related thereto as permitted to be deliveredamended, restated, amended and restated, replaced, supplemented, modified, waived or consented to by this Section 7.13(d). Parent shall promptly deliver to the Company a copies of any such amendment, restatement, amendment and restatement, replacement, supplement, modification, waiver or consent. Further, for the avoidance of doubt, if the Debt Financing (or any Replacement Financing) has not been obtained, Parent shall continue to be obligated to consummate the Transactions subject only to the satisfaction or waiver of the conditions set forth in ARTICLE 9. (e) If, notwithstanding the use of reasonable best efforts by Parent to satisfy its obligations under Sections 7.13(b), (c) and (d), any of the Debt Financing or the Debt Financing Commitments (or any definitive financing agreement relating thereto) expire or are terminated or become unavailable prior to the Closing, in whole or in part, for any reason, Parent shall (i) promptly notify the Company of such expiration, termination, or unavailability, and (ii) use its reasonable best efforts promptly to arrange for alternative financing (“Replacement Financing”) (which, together with cash on hand and other Debt Financing available to Parent, shall be sufficient to pay the Required Amount from other sources and shall not, without the prior consent of the Company, (A) include any conditions to such Replacement Financing that, on the whole, are materially more onerous than or in addition to the conditions set forth in the Debt Commitment Letter in effect on the date hereof or (B) otherwise be on terms and conditions that, on the whole, are materially less favorable than the terms and conditions of the Debt Commitment Letter in effect on the date hereof) to replace the financing contemplated by such expired, terminated, or unavailable commitments or arrangements. Parent shall deliver to the Company true, correct and complete copy copies of all Contracts or other arrangements pursuant to which any alternative source shall have committed to provide any portion of the Replacement Financing (provided, that any fee letters in connection therewith may be redacted in a manner consistent with the Fee Letter provided as of the date hereof). In the event that Replacement Financing is obtained in accordance with this Section 7.13(e), the definitions of “Debt Commitment Letter,” “Debt Financing Commitments,” and “Debt Financing,” shall include the commitments in respect of the Replacement Financing or the documents related thereto, or other material financing agreementsas applicable. Notwithstanding the foregoing, entered into compliance by Parent and/or Merger Sub after with the date hereof and relating provisions of this Section 7.13(e) shall not relieve Parent of their obligation to consummate the Offer, Transactions whether or not the Merger and the other transactions contemplated hereby. (e) The Company will file its Current Report on Form 10-Q for the quarter ended January 30, 2011 no later than March 11, 2011Debt Financing is available. (f) The Company Parent shall providereplace, and shall cause its Subsidiaries cash collateralize and/or otherwise “backstop” each letter of credit listed on Schedule 7.13(f) hereto (including, if applicable, by providing for the “deemed issuance” of the relevant letters of credit under the Debt Financing) at or prior to provide, and shall use its commercially reasonable efforts the Closing to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, the extent required to provide, all cooperation reasonably requested by Parent and/or release the Lenders in connection with Liens securing the financing transaction contemplated by the Commitment Letter; provided that such requested cooperation does not unreasonably interfere with the ongoing operations obligations of the Company and and/or its Subsidiaries) and that, until applicable subsidiaries under the Effective Time occurs, neither the Company nor any of its Subsidiaries shall (1) be required to pay any commitment or other similar fee, (2) make any representations or warranties to, or enter into any agreement, arrangement or understanding with any Lenders or other financing source or take any actions that could be reasonably expected to have any potentially adverse effect on the Company or any Subsidiary thereof, (3) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to the financing contemplated by the Commitment Letter, or (4) be required to incur any other liability or obligation in connection with such financing; provided, further, that (I) all non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 7.18(f) shall be kept confidential in accordance with the Confidentiality Existing Credit Agreement, except that Parent and Merger Sub shall be permitted to disclose such information to potential investors during syndication, subject to customary confidentiality undertakings by such potential investors and (II) the Company and its legal counsel shall be permitted a reasonable period to comment on any documents or other information circulated to potential financing sources that contain or are based upon any such non-public or other confidential information. Parent (A) shall promptly, upon request by the Company, reimburse the Company for all reasonable out of pocket costs (including reasonable attorneys’ fees) incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries and their Representatives contemplated by this Section 7.18, (B) acknowledges and agrees that the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any person prior to the Effective Time under, the financing contemplated by the Commitment Letter and (C) shall indemnify and hold harmless the Company, its Subsidiaries and their respective 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 such financing and any information used in connection therewith. The indemnity provided for in the foregoing sentence shall be an independent obligation of Parent and shall not be offset against any obligations owed to it hereunder.

Parent’s Financing. (a) From Parent is a party to that certain Series C Preferred Stock Purchase Agreement, dated April 9, 2009, as amended, under which the date hereof and continuing until investors identified therein have committed to purchase equity securities of Parent for cash on the closing Closing Date (as amended, the “Series C Agreement”). Concurrently with the execution of this Agreement, Parent is entering into a Series D Preferred Stock Purchase Agreement with certain investors identified therein providing for, among other things, the sale of equity securities of Parent’s for cash on the Closing Date (the “Series D Agreement”). Parent has delivered or made available to the Company copies of the Offer Series C Agreement and Series D Agreement (together, the Merger“Financing Agreements”). Parent shall use a portion of the funds received under the Financing Agreements on the Closing Date to finance the Merger Consideration. Parent shall use reasonable best efforts to: (i) satisfy on a timely basis all terms, covenants and conditions set forth in the Financing Agreements; and (ii) consummate the transactions contemplated by the Financing Agreements (the “Financing”) on or prior to the Closing Date. (b) During the Pre-Closing Period, Parent shall give the Company prompt notice of any material adverse change with respect to the Financing. Without limiting the foregoing, during the Pre-Closing Period, Parent agrees to notify the Company promptly, and in any event within two business days, if at any time: (i) any of the Financing Agreements shall be terminated for any reason prior to the Closing Date; (ii) any investor that is a party to any of the Financing Agreements notifies Parent that it no longer intends to provide financing to Parent on the terms set forth therein and another investor has not committed to provide such financing, but only to the extent that Parent would not be able to finance all of the Merger Consideration under this Agreement; or (iii) for any reason Parent no longer believes in good faith that it will be able to finance all of the Merger Consideration under this Agreement. Parent shall not directly or indirectly, or permit any Representative of Parent, without the prior written consent of the Company, to take or fail to take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of the Financing or any Alternate Financing (as defined below). Parent shall not amend or alter, or agree to amend or alter, the Financing Agreements in any manner that would prevent or materially impair or delay the consummation of Contemplated Transactions without the prior written consent of the Company. (c) If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Agreements, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the Contemplated Transactions (“Alternate Financing”) and to obtain, and, if obtained, will provide the Company with a copy of, a new financing commitment that provides for the amount of financing to the extent needed by Parent to fund the Merger Consideration (the “New Commitment Documents”). To the extent applicable, Parent shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions necessary, proper or advisable to ensure that arrange promptly and consummate the Alternate Financing on the terms and conditions described in any New Commitment Documents, including: (i) using commercially reasonable efforts to: (A) satisfy on a timely basis all terms, covenants and conditions set forth in the representation made in Section 6.8 of this Agreement is true New Commitment Documents; (B) enter into definitive agreements with respect thereto on the terms and correct, conditions contemplated by the New Commitment Documents; and (C) consummate the Alternate Financing at or prior to the Closing Date; and (ii) that Parent has sufficient liquid funds (through cash on handseeking to enforce its rights under the New Commitment Documents. In the event Alternate Financing is obtained and a New Commitment Documents are entered into, credit arrangements or otherwise) to pay all amounts payable by Parent hereunder, including, but not limited to, payment of the aggregate Offer Price and the Merger Consideration, (2) will have sufficient liquid funds (through cash on hand, credit arrangements or otherwise) to make all other necessary payments of fees and expenses references in connection with the Offer, the Merger and the other transactions contemplated hereby, when and this Section 5.8 to the extent such payments are due from it, and (3) will have sufficient liquid funds (through cash on hand, credit arrangements or otherwise) Financing Agreements shall be deemed to perform and discharge its obligations under this Agreement and in connection with the Offer, the Merger and the other transactions contemplated hereby, when and refer to the extent such obligations are required to be performed and discharged. (b) None of Parent, Merger Sub and their respective Affiliates shall take, or cause to be taken, or facilitate or intentionally encourage, directly or indirectly, any action that would, or would be reasonably likely to, have the effect of impeding, frustrating or interfering with their ability to finance the Offer, the Merger and the other transactions contemplated hereby. (c) Parent shall keep the Company reasonably apprised of the progress in effectuating its financing of the Offer, the Merger and the other transactions contemplated hereby, and promptly upon receipt thereof, shall furnish the Company with copies of any and all proposed and executed amendments to the New Commitment Letter or other material financing agreements and such Commitment Letter and other financing agreementsDocuments, as so amended, shall not contain any conditions to closing of the financing (“New Financing Conditions”) that were not contained in the Commitment Letter provided to the Company prior to the date hereof unless the New Financing Conditions are consented to in writing by the Company in its sole discretionapplicable. (d) Promptly upon receipt by Parent, Parent shall deliver, or cause to be delivered, to the Company a true, correct and complete copy of the Commitment Letter, or other material financing agreements, entered into by Parent and/or Merger Sub after the date hereof and relating to the Offer, the Merger and the other transactions contemplated hereby. (e) The Company will file its Current Report on Form 10-Q for the quarter ended January 30, 2011 no later than March 11, 2011. (f) The Company shall provide, and shall cause its Subsidiaries to provide, and shall use its commercially reasonable efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to provide, all cooperation reasonably requested by Parent and/or the Lenders in connection with the financing transaction contemplated by the Commitment Letter; provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries) and that, until the Effective Time occurs, neither the Company nor any of its Subsidiaries shall (1) be required to pay any commitment or other similar fee, (2) make any representations or warranties to, or enter into any agreement, arrangement or understanding with any Lenders or other financing source or take any actions that could be reasonably expected to have any potentially adverse effect on the Company or any Subsidiary thereof, (3) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to the financing contemplated by the Commitment Letter, or (4) be required to incur any other liability or obligation in connection with such financing; provided, further, that (I) all non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 7.18(f) shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Merger Sub shall be permitted to disclose such information to potential investors during syndication, subject to customary confidentiality undertakings by such potential investors and (II) the Company and its legal counsel shall be permitted a reasonable period to comment on any documents or other information circulated to potential financing sources that contain or are based upon any such non-public or other confidential information. Parent (A) shall promptly, upon request by the Company, reimburse the Company for all reasonable out of pocket costs (including reasonable attorneys’ fees) incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries and their Representatives contemplated by this Section 7.18, (B) acknowledges and agrees that the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any person prior to the Effective Time under, the financing contemplated by the Commitment Letter and (C) shall indemnify and hold harmless the Company, its Subsidiaries and their respective 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 such financing and any information used in connection therewith. The indemnity provided for in the foregoing sentence shall be an independent obligation of Parent and shall not be offset against any obligations owed to it hereunder.