Common use of Parent Financial Capability Clause in Contracts

Parent Financial Capability. (a) Parent has delivered to the Company true and complete copies of (i) a fully-executed commitment letter, dated as of the date hereof, by and among LLCP, Desnick, Medical Equity Dynamics, LLC, Parent and Merger Subsidiary (the “Debt Financing Commitment”), including the term sheets attached thereto, pursuant to which the lenders set forth therein have agreed to lend, subject to the conditions contained therein, the amounts set forth therein (the “Debt Financing”), and (ii) a fully-executed Equity Commitment Letter, dated as of the date hereof, by and between Desnick and India Investment Company and a fully-executed Commitment Letter, dated as of the date hereof, by and between India Investment Company and Parent (the “Equity Financing Commitments” and together with the Debt Financing Commitment, the “Financing Commitments”), pursuant to which the Investor (as defined therein) has committed to invest, subject to the conditions contained therein, the amount set forth therein (the “Equity Financing” and together with the Debt Financing, and each for the purposes of consummating the transactions contemplated by this Agreement, the “Financing”). (b) As of the date hereof, none of the Financing Commitments has been amended or modified except to the extent permitted by this Agreement, and, as of the date hereof, the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect, and as of the date hereof, to the knowledge of Parent, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default thereunder. As of the date hereof, the Financing Commitments are in full force and effect and are legal, valid, binding and enforceable obligations of Parent and, to the knowledge of Parent, the other parties thereto, subject to (i) the termination or expiration thereof in accordance with its terms and (ii) the qualification that such enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting rights of creditors and that equitable remedies, including specific performance, are discretionary and may not be ordered. As of the date hereof, all commitment fees and other fees, if any, required to be paid pursuant to each of the Financing Commitments have been paid in full or will be duly paid in full when due. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as set forth in or contemplated by the Financing Commitments. Assuming the satisfaction of all of the conditions to Parent’s obligation to consummate the Merger, the accuracy in all material respects of the representations and warranties of the Company in Article 4 hereof, compliance by the Company in all material respects with the covenants contained in this Agreement, and the Financing is funded in accordance with the terms and conditions of the Financing Commitment, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Financing Commitments will be sufficient at the Effective Time, together with cash and cash equivalents in the Company’s bank accounts immediately prior to the Effective Time in an amount sufficient to satisfy the condition to Closing set forth in Section 9.02(h), for Parent and the Surviving Corporation to pay (i) the Merger Consideration, the Option Consideration and the Warrant Consideration in accordance with the terms of this Agreement and (ii) all associated fees and expenses of the Merger required to be paid or satisfied by Parent or Merger Subsidiary hereunder. As of the date of this Agreement, Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing will not be available to Parent and Merger Subsidiary at the Closing as contemplated in the Financing Commitments. (c) Neither Parent nor Merger Subsidiary is, as of the date hereof, aware of any fact, occurrence or condition that makes any of the assumptions or statements set forth in any Financing Commitment inaccurate in any material respect or that would cause the commitments provided in any Financing Commitment to be terminated or ineffective or any of the conditions contained therein not to be met. (d) The equity investment under the Equity Financing Commitments is not subject to any condition other than the fulfillment in accordance with the terms hereof of the conditions to Parent’s and Merger Subsidiary’s obligations to consummate the Merger set forth in Section 9.01 and Section 9.02. (e) Concurrently with the execution of this Agreement, Desnick has delivered to the Company the duly executed Limited Guarantee executed by Desnick, in favor of the Company with respect to the performance by Parent and Merger Subsidiary, respectively, of certain of their respective obligations under this Agreement. The Limited Guarantee is in full force and effect and is the valid, binding and enforceable obligation of Desnick, except to the extent enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally or by general equitable principles or by principles of good faith and fair dealing (regardless of whether enforcement is sought in equity or at law), and no event has occurred which, with or without notice, lapse of time or both, would constitute a default on the part of Desnick under the Limited Guarantee.

Parent Financial Capability. (a) Parent has delivered to the Company true and complete copies of (i) a fully-executed commitment letter, dated as of the date hereofJune 23, 2010, by and among LLCPParent, DesnickBank of America, Medical Equity DynamicsN.A., Banc of America Securities LLC, Parent RBS Citizens, N.A., and Merger Subsidiary The Private Bank (the “Debt Financing Commitment”), including the term sheets attached thereto, pursuant to which the lenders set forth therein have agreed to lend, subject to the conditions contained therein, the amounts set forth therein (the “Debt Financing”), and (ii) a fully-executed Equity Commitment LetterFinancing Commitments by and between Parent and each of: (i) ZM Capital, L.P. (dated as of the date hereofJune 23, by and between Desnick and India Investment Company and a fully-executed Commitment Letter2010); (ii) Private Equity Direct Partnership II (QP), LP (dated as of the date hereofJune 23, by 2010); (iii) ▇▇▇▇▇▇ River Co-Investment Fund, L.P. (dated as of June 23, 2010); (iv) NPE Caspian I B, L.P. (dated as of June 23, 2010); and between India Investment Company (v) Rosemont Solebury Coinvestment Fund, L.P. and Parent Rosemont Solebury Coinvestment Fund (Offshore), L.P. (dated as of June 23, 2010), true and correct copies of which are set forth on Exhibit C hereto (the “Equity Financing CommitmentsCommitment” and together with the Debt Financing Commitment, the “Financing Commitments”), pursuant to which the Investor Equity Providers (as defined therein) has have committed to invest, subject to the conditions contained therein, the amount set forth therein (the “Equity Financing” and together with the Debt Financing, and each for the purposes of consummating the transactions contemplated by this Agreement, the “Financing”). (b) As of the date hereof, none None of the Financing Commitments has been amended or modified except to the extent permitted by this Agreement, and, as of the date hereof, the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect, and as of the date hereof, to the knowledge of Parentthis Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default thereunder. As of the date hereofof this Agreement, the Financing Commitments are in full force and effect and are legal, valid, valid and binding and enforceable obligations of Parent and, to the knowledge of Parent, and the other parties thereto, subject to (i) the termination or expiration thereof in accordance with its terms and (ii) the qualification that such enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting rights of creditors and that equitable remedies, including specific performance, are discretionary and may not be ordered. As of the date hereof, all All commitment fees and other fees, if any, fees required to be paid pursuant to each of the Financing Commitments have been paid in full or will be duly paid in full when due. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as set forth in or contemplated by the Financing Commitments. The Financing Commitments set forth the entire agreement of the parties thereto with respect to the Financing. Assuming the satisfaction of all of the conditions to Parent’s obligation to consummate the Merger, the accuracy in all material respects of the representations and warranties of the Company set forth in Article 4 hereof, compliance by the Company in all material respects with the covenants contained in this Agreement, Section 4.05 and the Financing is funded in accordance with the terms and conditions of the Financing CommitmentSection 4.08, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Financing Commitments Commitments, if funded, will be sufficient at the Effective Time, together with cash and cash equivalents in the Company’s bank accounts immediately prior to the Effective Time in an amount sufficient to satisfy the condition to Closing set forth in Section 9.02(h), for Parent and the Surviving Corporation to pay (i) the Merger Consideration, the Option Consideration, the Restricted Stock Consideration and the Warrant Consideration in accordance with the terms of this Agreement and (ii) all associated fees and expenses of related to the Merger required to be paid or satisfied transactions contemplated by Parent or Merger Subsidiary hereunderthis Agreement. As of the date of this Agreement, Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing will not be available to Parent and Merger Subsidiary at the Closing as contemplated in the Financing Commitments. (c) Neither Parent nor Merger Subsidiary is, as of the date hereof, aware of any fact, occurrence or condition that makes any of the assumptions or statements set forth in any Financing Commitment inaccurate in any material respect or that would cause the commitments provided in any Financing Commitment to be terminated or ineffective or any of the conditions contained therein not to be met. (d) The equity investment by the Equity Providers under the Equity Financing Commitments Commitment is not subject to any condition other than the fulfillment in accordance with the terms hereof of the conditions to Parent’s and Merger Subsidiary’s obligations to consummate the Merger set forth in Section 9.01 and Section 9.02. (e) Concurrently with the execution of this Agreement, Desnick has delivered to the Company the duly executed Limited Guarantee executed by Desnick, in favor of the Company with respect to the performance by Parent and Merger Subsidiary, respectively, of certain of their respective obligations under this Agreement. The Limited Guarantee is in full force and effect and is the valid, binding and enforceable obligation of Desnick, except to the extent enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally or by general equitable principles or by principles of good faith and fair dealing (regardless of whether enforcement is sought in equity or at law), and no event has occurred which, with or without notice, lapse of time or both, would constitute a default on the part of Desnick under the Limited Guarantee.

Parent Financial Capability. (a) Parent has delivered to the Company true and complete copies of (i) a fully-fully executed commitment letter, dated as of the date hereofAugust 25, 2013, by and among LLCPbetween Highbridge Principal Strategies, Desnick, Medical Equity Dynamics, LLC, Parent LLC and Merger Subsidiary (the “Debt Financing Commitment”), including the term sheets attached thereto, and a customarily redacted fee letter related to such Debt Financing Commitment, pursuant to which the lenders set forth therein have agreed to lend, subject to the conditions contained therein, the amounts set forth therein (the “Debt Financing”), and (ii) a fully-fully executed Equity Commitment LetterFinancing Commitment, dated as of the date hereofAugust 25, 2013, by and between Desnick and India Investment Company and a fully-executed Commitment Letter▇▇▇▇▇▇▇▇▇▇▇ Partners III, dated as of the date hereof, by and between India Investment Company LP and Parent (the “Equity Financing CommitmentsCommitment” and together with the Debt Financing Commitment, the “Financing Commitments”), pursuant to which the Investor Sponsor (as defined therein) has committed to invest, subject to the conditions contained therein, the amount set forth therein (the “Equity Financing” and together with the Debt Financing, and each for the purposes of consummating the transactions contemplated by this Agreement, the “Financing”). (b) As Except as set forth on Section 5.08(b) of the date hereofParent Disclosure Schedule, none the Financing Commitments and the fee letter referenced in the Debt Financing Commitment are the only agreements entered into by Parent or any Affiliate of Parent with respect to the Financing and there are no side letters or other oral or written agreements, arrangements or understandings relating to the funding of the full amount of the Financing. None of the Financing Commitments has been amended or modified except to the extent permitted by this Agreement, and, as of the date hereof, the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect, and and, as of the date hereof, to the knowledge of Parentthis Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default thereunder; provided, however, that Parent is not making any representation or warranty regarding the effect of (i) any inaccuracy in the representations and warranties set forth in Article 4 or (ii) the failure of the Company to comply with any covenant herein. As of the date hereofof this Agreement, the Financing Commitments are in full force and effect and are legal, valid, valid and binding and enforceable obligations of Parent and, to the knowledge of Parent, and the other parties thereto, thereto (subject to (i) the termination or expiration thereof in accordance with its terms and (ii) the qualification that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of general application relating to equity whether considered in a proceeding at equity or affecting rights of creditors and that equitable remedies, including specific performance, are discretionary and may not be orderedat law). As of the date hereof, all All commitment fees and other fees, if any, fees required to be paid pursuant to each of the Financing Commitments have been paid in full or will be duly paid in full when due. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as set forth in or contemplated by the Financing Commitments. Assuming the satisfaction of all of the conditions to Parent’s obligation to consummate the Merger, the accuracy in all material respects of the representations and warranties of the Company in Article 4 hereof, compliance by the Company in all material respects with the covenants contained in this Agreement, and the Financing is funded in accordance with the terms and conditions of the Financing Commitment, the The aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Financing Commitments will be sufficient at the Effective TimeCommitments, when funded in accordance therewith, will, together with cash and cash equivalents in of the Company’s bank accounts immediately prior to the Effective Time in an amount , be sufficient to satisfy the condition to Closing set forth in Section 9.02(h), for Parent and the Surviving Corporation to pay (i) the aggregate Merger Consideration, the Option Consideration and Consideration, amounts necessary to repay all outstanding amounts under the Warrant Consideration in accordance with the terms of this Credit Agreement and (ii) all associated payments, fees and expenses related to or arising out of the Merger required to be paid or satisfied transactions contemplated by Parent or Merger Subsidiary hereunderthis Agreement. As Assuming the satisfaction of the conditions set forth in Section 9.01 and 9.02, as of the date of this Agreement, Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing will not be available to Parent and Merger Subsidiary at the Closing as contemplated in the Financing Commitments. (c) Neither Parent nor Merger Subsidiary is, as of the date hereof, aware of any fact, occurrence or condition that makes any of the assumptions or statements set forth in any Financing Commitment inaccurate in any material respect or that would cause the commitments provided in any Financing Commitment to be terminated or ineffective or any of the conditions contained therein not to be met. (d) The equity investment under the Equity Financing Commitments is not subject to any condition other than the fulfillment in accordance with the terms hereof of the conditions to Parent’s and Merger Subsidiary’s obligations to consummate the Merger set forth in Section 9.01 and Section 9.02. (e) Concurrently with the execution of this Agreement, Desnick has delivered to the Company the duly executed Limited Guarantee executed by Desnick, in favor of the Company with respect to the performance by Parent and Merger Subsidiary, respectively, of certain of their respective obligations under this Agreement. The Limited Guarantee is in full force and effect and is the valid, binding and enforceable obligation of Desnick, except to the extent enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally or by general equitable principles or by principles of good faith and fair dealing (regardless of whether enforcement is sought in equity or at law), and no event has occurred which, with or without notice, lapse of time or both, would constitute a default on the part of Desnick under the Limited Guarantee.