Common use of Availability of Financing Clause in Contracts

Availability of Financing. (a) Parent and Acquisition Sub will have available to them at the Acceptance Time and at the Closing, all funds necessary to consummate the Transactions and satisfy all of their obligations hereunder, including the payment of the aggregate Offer Price and aggregate Merger Consideration and the obligations of Parent pursuant to Section 3.4, and to pay any fees and expenses of or payable by Parent, Acquisition Sub, and the Surviving Corporation (the “Aggregate Cash Amount”). In no event shall the receipt or availability of any funds or financing by Parent or Acquisition Sub or any other financing or other transactions be a condition to any of Parent’s or Acquisition Sub’s obligations hereunder. (b) Parent is a party to and has accepted a fully executed commitment letter dated November 18, 2015 (attached hereto as Exhibit A, and together with the fee letters referred to in the following sentence, the “Debt Commitment Letter”) from the financial institution or institutions identified therein (in their capacity as such, the “Debt Providers”) pursuant to which the Debt Providers have agreed to provide, subject to the terms and conditions therein, debt financing in the amounts set forth therein (the “Debt Financing”). Parent has delivered to the Company true, complete and correct copies of the executed Debt Commitment Letter and any fee letters related thereto, subject, in the case of such fee letters, to redaction solely of fee and other economic provisions that are customarily redacted in connection with transactions of this type and that could not in any event affect the availability or amount of the Debt Financing. As of the date hereof, the Debt Commitment Letter has not been amended or modified, the respective obligations and commitments contained in such letter have not been withdrawn or rescinded in any respect, and to the knowledge of Parent, no such amendment, modification, withdrawal, or rescission is contemplated. The existence or exercise of the “flex” provisions contained in the fee letters delivered to the Company with respect thereto shall not constitute an amendment or modification of the Commitment Letter. Parent or Acquisition Sub has fully paid any and all commitment fees or other fees in connection with the Commitment Letter that are payable on or prior to the date hereof and will pay in full any such amounts due on or before the Closing Date. (c) As of the date hereof, the Debt Commitment Letter is in full force and effect and are the valid, binding and enforceable obligations of Parent and Acquisition Sub and, to the knowledge of Parent, the other parties thereto, subject to Enforceability Limitations. As of the date hereof, to the knowledge of Parent, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a failure to satisfy a condition by Parent or a default or breach on the part of Parent or Acquisition Sub or any other parties thereto under the Debt Commitment Letter. As of the date hereof, Parent is not aware of any fact, occurrence or condition that makes any of the assumptions or statements set forth in the Debt Commitment Letter inaccurate in any material respect, nor does it have any reason to believe that any of the conditions to the Debt Financing will not be satisfied on or prior to the Closing Date or that the Debt Financing will not be available to Parent or Acquisition Sub on or before the date of the Closing; provided that Parent is not making any representation regarding the accuracy of the representations and warranties set forth in Article IV or compliance by the Company with its obligations hereunder. The Debt Commitment Letter contains all of the conditions precedent to the obligations of the Debt Providers to make the Debt Financing available to Parent on the terms therein, and there are no other conditions to the funding of the full amount of the Debt Financing or contingencies that would permit the Debt Providers to reduce the total amount of the Debt Financing, including any condition or other contingency relating to the availability of the Debt Financing pursuant to any “flex” provision. As of the date hereof, there are no side letters, understandings, arrangements, or Contracts (other than the Debt Commitment Letter) between Parent or any of its affiliates and any of the Debt Providers or their respective affiliates related to the Debt Financing, except for any customary engagement letters in respect of the Debt Financing that do not impact the availability, conditionality or amount of the Debt Financing. (d) The Debt Financing, when funded in accordance with the Debt Commitment Letter, together with the funds available to Parent, will provide Parent with cash proceeds at the Acceptance Time and on the Closing Date sufficient to pay the Aggregate Cash Amount.