Common use of Conditions to the Disbursement Clause in Contracts

Conditions to the Disbursement. The obligation of the Lenders to make the Disbursement shall be subject to the satisfaction (or written waiver) of the following conditions in a manner satisfactory to each Lender: (a) Agent and the Lenders shall have received (i) executed counterparts of this Agreement and each other Facility Document set forth on the closing checklist attached hereto as Exhibit B, other than those that are specified therein as permitted to be delivered after the Closing Date and (ii) an original Convertible Note duly executed and delivered by the Borrower; (b) each Lender shall have received a certificate from an Responsible Officer of the Borrower certifying that all of the conditions set forth in this Section 4.1 have been, or contemporaneously with the funding of the Disbursement will be, satisfied; (c) a favorable legal opinion of DLA Piper LLP, counsel to the Loan Parties, addressed to the Lender and the Agent, as to such matters concerning the Loan Parties and the Facility Documents as the Lender may reasonably request; (d) the administrative fees required to be paid pursuant to Section 2.8 and all other fees required to be paid on the Closing Date pursuant to this Agreement and the other Facility Documents and all costs and expenses required to be paid on the Closing Date (including pursuant to Section 8.2) pursuant to this Agreement and the other Facility Documents, in the case of costs and expenses, to the extent invoiced at least one (1) Business Day prior to the Closing Date, shall have been, or substantially contemporaneously with the Disbursement shall be, paid (which amounts, at the sole option of the Lenders, may be offset against the proceeds of the Disbursement); (e) Agent and the Lenders shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, that has been reasonably requested by Agent or any Lender at least ten (10) days in advance of the Closing Date, which shall include a duly executed IRS Form W-9; and (f) such other conditions, documents and deliverables that Agent or any Lender may reasonably request shall have been satisfied or delivered, as applicable. (g) no Default or Event of Default shall have occurred or could reasonably be expected to result from such Disbursement or the use of the proceeds therefrom; (h) immediately prior to and after giving effect to such Disbursement and the use of proceeds thereof, each representation and warranty by any Loan Party or any of its Subsidiaries contained herein or in any other Facility Document is true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date);

Conditions to the Disbursement. The obligation of the Lenders to make the Disbursement shall be subject to the fulfillment and satisfaction (or written waiver) of all of the following conditions in a manner satisfactory to each Lenderconditions: (a) Agent and the Lenders shall have received (i) executed counterparts of this Agreement and each other Facility Loan Document (including the Intercreditor Agreement) set forth on the closing checklist attached hereto as Exhibit B, other than those that are specified therein as permitted to be delivered after the Closing Date and (ii) an original Convertible Note duly executed and delivered by the BorrowerD; (b) each Lender all actions required to be taken by the Borrower pursuant to Section 2.8 shall have received a certificate from an Responsible Officer of the Borrower certifying that all of the conditions set forth in this Section 4.1 have been, or contemporaneously with the funding of the Disbursement will be, satisfiedbeen taken; (c) a favorable legal opinion of DLA Piper LLP, counsel to the Loan Parties, addressed to the Lender and the Agent, as to such matters concerning the Loan Parties and the Facility Documents as the Lender may reasonably request; (d) the administrative fees required to be paid pursuant to Section 2.8 and all other fees required to be paid on the Closing Date pursuant to this Agreement and the other Facility Documents and all costs and expenses required to be paid on the Closing Date (including pursuant to Section 8.2) pursuant to this Agreement and the other Facility Documents, in the case of costs and expenses, to the extent invoiced at least one (1) Business Day prior to the Closing Date, shall have been, or substantially contemporaneously with the Disbursement shall be, paid (which amounts, at the sole option of the Lenders, may be offset against the proceeds of the Disbursement); (e) Agent and the Lenders shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, that has been reasonably requested by Agent or any Lender at least ten (10) days in advance of the Closing Date, which shall include a duly executed IRS Form W-9; and (f) such other conditions, documents and deliverables that Agent or any Lender may reasonably request shall have been satisfied or delivered, as applicable. (g) no Default or Event of Default shall have occurred or could reasonably be expected to result from such Disbursement or the use of the proceeds therefrom; (h) immediately prior to and after giving effect to such Disbursement and the use of proceeds thereof, each representation and warranty by any Loan Party or any of its Subsidiaries contained herein or in any other Facility Loan Document is true, correct and complete in all material respects (without duplication of any materiality qualifier qualified contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date); (d) neither the Borrower nor any of its Subsidiaries shall have any Indebtedness, other than Permitted Indebtedness and all other Indebtedness shall be paid off pursuant to payoff letters reasonably satisfactory to Agent and any Liens relating thereto shall be terminated in a manner reasonably satisfactory to Agent; (e) all actions necessary to establish that Agent (for the benefit of itself and the Lenders) will have perfected first priority security interests (subject only to the prior priority of the Permitted Priority Liens and Liens in the Collateral under the Loan Documents shall have been taken; (f) all fees required to be paid on the Agreement Date pursuant to this Agreement and the other Loan Documents and all costs and expenses required to be paid on the Agreement Date (including pursuant to Sections 2.7(a) and 6.3) pursuant to this Agreement and the other Loan Documents (which amounts, at the sole option of the Lenders, may be offset against the proceeds of the Disbursement); (g) Agent and the Lenders shall have received at least three (3) Business Days prior to the Agreement Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, that has been reasonably requested by Agent or any Lender; (h) the conditions set forth in Section 2.2(a) have been satisfied and the terms set forth in Section 2.2(a) have been completely complied with; (i) no Default or Event of Default shall have occurred or would result from such Disbursement or the use of the proceeds therefrom; (j) the Lenders shall have received Notes aggregating the amount of the funded Disbursement; (k) the Borrower shall have delivered to the Secured Parties a letter from the transfer agent for the Common Stock certifying the number of shares of Common Stock outstanding as of a date within two (2) Business Days prior to the Agreement Date; (i) Agent shall have received copies of the (A) executed payoff letter evidencing the payoff of all Indebtedness under the Existing ABL Credit Facility and all other Existing ABL Debt Documents and all other Indebtedness owed to MidCap Financial Trust or its Affiliates by any Loan Party or any of its Subsidiaries, the termination of all revolving commitments and lines of credit and other products and services provided thereunder and the termination and release of all Liens granted thereunder or thereto, and (B) release and termination documents evidencing such termination of all such Liens (including UCC-3 termination statements) and (ii) Existing ABL Agent and Existing ABL Lenders shall have taken all actions and made all recordings and filings to effectuate the foregoing, or shall have given Borrower and/or Agent the authority to do so as requested by the Secured Parties; and (m) Agent shall have received the ABL Debt Documents, which shall be in form and substance reasonably satisfactory to the Agent and the Lenders and the Agent and the Lenders shall have received evidence reasonably satisfactory to them that all conditions set forth in the ABL Debt Documents to make such documents effective and closed and to fund loans thereunder have been satisfied in all respects.

Conditions to the Disbursement. The obligation of the Lenders to make the Disbursement Loans shall be subject to the satisfaction (or written waiver) of the following conditions in a manner satisfactory to each Lender: (a) Agent and the Lenders shall have received (i) executed counterparts of this Agreement and each other Facility Document set forth on the closing checklist attached hereto as Exhibit B, other than those that are specified therein as permitted to be delivered after the Closing Date and (ii) an original Disbursement Loan Convertible Note duly representing such Lender’s Disbursement Loan and an Original Loan Convertible Note representing such Xxxxxx’s Original Loan as amended and restated as of the Closing Date, in each case executed and delivered by the Borrower; (b) each Lender shall have received a certificate from an Responsible Officer of the Borrower certifying that all of the conditions set forth in this Section 4.1 have been, or contemporaneously with the Closing Date Equity Exchange and the funding of the Disbursement Loans will be, satisfied; (c) each Lender shall have received a favorable legal opinion of DLA Piper LLP, counsel to the Loan Parties, addressed to the Lender and the Agent, as to such matters concerning the Loan Parties and the Facility Documents as the Lender may reasonably request; (d) the administrative fees required to be paid pursuant to Section 2.8 and all other fees required to be paid on the Closing Date pursuant to this Agreement and the other Facility Documents and all costs and expenses required to be paid on the Closing Date (including pursuant to Section 8.2) pursuant to this Agreement and the other Facility Documents, in the case of costs and expenses, to the extent invoiced at least one (1) Business Day prior to the Closing Date, shall have been, or substantially contemporaneously with the making of the Disbursement Loans shall be, paid (which amounts, at the sole option of the Lenders, may be offset against the proceeds of the DisbursementDisbursement Loans); (e) the Agent and the Lenders shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, that has been reasonably requested by Agent or any Lender at least ten (10) days in advance of the Closing Date, which shall include a duly executed IRS Form W-9; and; (f) such other conditions, documents and deliverables that Agent or any Lender may reasonably request shall have been satisfied or delivered, as applicable.; (g) no Default or Event of Default shall have occurred or could reasonably be expected to result from such the Closing Date Equity Exchange and the making of the Disbursement Loans or the use of the proceeds therefrom; (h) the Closing Date Equity Exchange shall have occurred in accordance with the terms of the Exchange Agreement; (i) immediately prior to and after giving effect to such the Closing Date Equity Exchange and the making of the Disbursement Loans and the use of proceeds thereof, each representation and warranty by any Loan Party or any of its Subsidiaries contained herein or in any other Facility Document is true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date); (j) except for any action specified in Exhibit B to be taken after the Closing Date or any Facility Document as permitted to be taken after the Closing Date, no Loan Party nor any of its Subsidiaries shall have any Debt, other than Debt permitted under Section 6.1, and the Debt under the Existing Credit Agreements, shall have been or shall be substantially contemporaneously with the funding of the Disbursement Loans and the Closing Date Equity Exchange on the Closing Date, paid off pursuant to payoff letters reasonably satisfactory to the Lenders, and any Liens relating thereto and any other Liens that are not Permitted Liens shall have been or shall, substantially contemporaneously with the funding of the Disbursement Loans and the Closing Date Equity Exchange on the Closing Date, be terminated in a manner reasonably satisfactory to the Lenders; (k) except for any action specified in Exhibit B to be taken after the Closing Date or any Facility Document as permitted to be taken after the Closing Date, all actions necessary to establish that the Agent (for the benefit of the Secured Parties) will have perfected first priority Liens (subject to Permitted Liens) in the Collateral under the Facility Documents shall have been or shall substantially contemporaneously with the funding of the Loan on the Closing Date be taken; (l) Agent and the Lenders shall have received a copy of the Registration Rights Agreement in form and substance reasonably acceptable to the Agent and the Lenders; (m) all outstanding interest and fees in respect of the Prior Loans and other amounts due and owing under the Prior Agreement shall have been paid in full in cash; and (n) the Agent and the Lenders shall have received a Solvency Certificate duly executed by an Responsible Officer of the Borrower.