Common use of Commitment to Lend Clause in Contracts

Commitment to Lend. (i) Subject to the terms and conditions hereof, each Initial Lender severally agrees to make term loans to Kimco, in Dollars only (each, an “Initial Loan”), in a single Borrowing on the Effective Date in an aggregate principal amount equal to such Lender’s Applicable Percentage of the aggregate amount of such Borrowing requested by Kimco to be made on such day. If the aggregate amount of Loans so requested is less than the Aggregate Commitment as of such date, any unused portion of the Aggregate Commitment shall thereupon be cancelled. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the aggregate outstanding amount of Loans exceed the Aggregate Commitment. (ii) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder. (iii) Subject to Section 2.8 and Section 2.10, Loans may from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined by Kimco and notified to the Administrative Agent in accordance with Sections 2.2(d) and 2.4. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of Kimco to repay such Loan in accordance with the terms of this Agreement; provided, further, that each applicable Lender shall at all times comply with the requirements of this Agreement in respect thereto, including Section 2.12, and no Lender shall make any such election if and to the extent the same would cause Kimco to increase its payment obligations hereunder.

Commitment to Lend. (i) Subject to the provisions of (S)2.4 ------------------ and the other terms and conditions hereofset forth in this Agreement, each Initial Lender of the Banks severally agrees to make term loans lend to Kimcothe Borrower, and the Borrower may borrow, repay, and reborrow from each Bank from time to time between the Closing Date and the Maturity Date upon notice by the Borrower to the Agent (with copies to the Agent for each Bank) given in Dollars only accordance with (eachS)2.4 hereof, an “Initial Loan”), in such sums as are requested by the Borrower up to a single Borrowing on the Effective Date in an maximum aggregate principal amount outstanding (after giving effect to all amounts requested) at any one time equal to such Bank's Commitment minus an amount equal to such Lender’s Applicable Bank's Commitment ----- Percentage multiplied by the Maximum Drawing Amount; provided that the sum of ---------- -------- the aggregate amount of such Borrowing requested by Kimco to be made on such day. If the aggregate amount of Loans so requested is less than the Aggregate Commitment as of such date, any unused portion of the Aggregate Commitment shall thereupon be cancelled. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the aggregate outstanding amount of the Revolving Credit Loans (after giving effect to all amounts requested) plus, without double-counting the portion, if any, of any ---- Letter of Credit which is drawn and included in the Revolving Credit Loans, all outstanding Reimbursement Obligations shall not at any time exceed the Aggregate Commitment. lesser of (i) the Total Commitment and (ii) The failure the Borrowing Base Availability at such time, and provided, further, that at the time the Borrower requests a Revolving Credit -------- ------- Loan and after giving effect to the making thereof: (i) in the case of any Lender borrowing, all of the conditions in (S)13 (and in the case of any initial borrowing, also the conditions in (S)12) have been met at the time of such request, and (ii) there has not occurred and is not continuing (or will not occur by reason of) any Default or Event of Default; it being acknowledged and agreed that the Borrower shall be permitted to make request and borrow Loans if a Non-Material Breach (rather than a Default or Event of Default) exists, provided -------- that in the event that such Non-Material Breach relates to a Real Estate Asset forming part of the Borrowing Base at such time, such Real Estate Asset shall be excluded from the calculation of Borrowing Base Availability for all purposes in the compliance certificate accompanying any Completed Loan Request. The Revolving Credit Loans shall be made pro rata in accordance with --- ---- each Bank's Commitment Percentage. Each request for a Revolving Credit Loan made pursuant to (S)2.4 hereof shall constitute a representation and warranty by the Borrower that the conditions set forth in (S)12 have been satisfied (except to the extent any such condition has been waived and/or deferred in writing by the Agent and the required number of Banks) as of the Closing Date and that the conditions set forth in (S)13 have been satisfied (except to the extent any such condition has been waived and/or deferred in writing by the Agent and the required number of Banks) on the date of such request and will be satisfied (except to the extent any such condition has been waived and/or deferred in writing by the Agent and the required number of Banks) on the proposed Drawdown Date of the requested Loan or issuance of Letter of Credit, as the case may be, provided that the making of such representation and warranty by the Borrower -------- shall not limit the right of any Bank not to lend if such conditions have not been met. No Revolving Credit Loan shall be required to be made by it shall not relieve any other Lender of its obligations hereunder. Bank unless (iii) Subject to Section 2.8 and Section 2.10, Loans may from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined by Kimco and notified to the Administrative Agent in accordance with Sections 2.2(d) and 2.4. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of Kimco to repay such Loan in accordance connection with the terms initial Revolving Credit Loan or Letter of this Agreement; provided, further, that each applicable Lender shall at Credit) all times comply with of the requirements of this Agreement conditions contained in respect thereto, including Section 2.12, and no Lender shall make any such election if and (S)12 have been satisfied (except to the extent any such condition has been waived and/or deferred in writing by the same would cause Kimco Agent and the required number of Banks) as of the Closing Date and unless all of the conditions set forth in (S)13 have been met at the time of any request for a Revolving Credit Loan (except to increase its payment obligations hereunderthe extent any such condition has been waived and/or deferred in writing by the Agent and the required number of Banks).

Commitment to Lend. (ia) Subject to Upon the terms and subject to the conditions hereofof this Agreement, each Initial Lender severally Bank agrees to make term loans make, from time to Kimcotime during the period from the Agreement Date through the Maturity Date, in Dollars only (each, an “Initial Loan”), in a single Borrowing on one or more Loans to the Effective Date Borrower in an aggregate unpaid principal amount equal not exceeding at any time such Bank's Available Commitment at such time. Subject to Section 2.06 and the other terms and conditions of this Agreement, the Loans may, at the option of the Borrower, be made as, and from time to time continued as or converted into, Base Rate Loans or Eurodollar Rate Loans, or any combination thereof. Upon the terms and subject to the conditions of this Agreement, the Borrower may borrow, pay or prepay and reborrow Loans. (b) In the event that the Commitments shall be increased at any time following the effective date of Amendment No. 2 through a post-closing syndication to additional financial institutions, each of which must satisfy the requirements of an Eligible Assignee ("New Banks"), each New Bank shall automatically become a Bank hereunder by executing and delivering to the Agent an Accession and Amendment Agreement; provided, that such New Bank is consented to by the Agent, each Issuing Bank and the Borrower. The Agent shall promptly notify each Bank of any New Bank, such New Bank's Commitment and the Percentage of each Bank after taking into account such New Bank's Commitment. On the effective date of each Accession and Amendment Agreement, each New Bank shall purchase by assignment from the other Banks (and such other Banks shall assign to such Lender’s Applicable New Bank) such portion of the Loans and Unreimbursed Drawings (if any) owing to them as shall be designated by the Agent such that, after giving effect to all such purchases and assignments, the outstanding Loans and Unreimbursed Drawings owing to each Bank shall equal such Bank's Percentage of the aggregate amount of such Borrowing requested by Kimco Loans and Unreimbursed Drawings owing to be made on such day. If the aggregate amount of Loans so requested is less than the Aggregate Commitment as of such date, any unused portion of the Aggregate Commitment shall thereupon be cancelled. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the aggregate outstanding amount of Loans exceed the Aggregate Commitmentall Banks. (ii) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder. (iii) Subject to Section 2.8 and Section 2.10, Loans may from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined by Kimco and notified to the Administrative Agent in accordance with Sections 2.2(d) and 2.4. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of Kimco to repay such Loan in accordance with the terms of this Agreement; provided, further, that each applicable Lender shall at all times comply with the requirements of this Agreement in respect thereto, including Section 2.12, and no Lender shall make any such election if and to the extent the same would cause Kimco to increase its payment obligations hereunder."

Commitment to Lend. (ia) Subject Each Committed Lender severally agrees, subject to the Agent’s determination that the terms and conditions hereofof Sections 2.02 and 4.03 applicable to any Funding Date have been (i) satisfied or, each Initial Lender severally agrees (ii) solely to the extent permitted by the last sentence of this clause (a) temporarily waived by the Agent, which waiver shall last for a period of no longer than 5 Business Days, or, (iii) in all other cases, waived by the Agent and all of the Lenders, and on the other terms and conditions set forth in this Agreement, to make term loans Loans to Kimcothe Borrower pursuant to this Section 2.01 on each Funding Date during the Availability Period in order to fund the acquisition of Railcars and related Leases by the Borrower on such Funding Date. The Loans advanced on any Funding Date with respect to any Railcars and related Leases shall not: (i) in the case of any Committed Lender, exceed (after giving effect to all Loans of such Committed Lender and any Conduit Lender designated by such Committed Lender repaid concurrently with the making of such Loans) its Available Commitment; (ii) exceed the lesser of (A) the Unused Commitment Amount and (B) the product of the applicable Advance Rate multiplied by the aggregate Fair Market Value of all Eligible Railcars included in Dollars only such Railcars; or (each, an “Initial Loan”), in a single Borrowing on the Effective Date in an aggregate principal amount equal iii) when added to such Lender’s Applicable Percentage of the aggregate amount of the Loans then outstanding (after giving effect to all Loans repaid concurrently with the making of such Loans), exceed the lesser of (A) the Commitment Amount and (B) the Borrowing requested Base (after giving effect to the addition to and/or removal of the respective Fair Market Values of any Eligible Railcars to be added to or removed from the Portfolio on such Funding Date). Each Borrowing shall be in a minimum aggregate principal amount of $5,000,000, in the case of the first Borrowing hereunder, or $1,000,000, in the case of subsequent Borrowings, and shall be made from the several Committed Lenders ratably in proportion to their respective Commitments. The Lenders have no obligation to make any Loan hereunder except as expressly set forth in this Agreement. Within the foregoing limits, the Borrower may borrow under this Section 2.01, repay, or, to the extent permitted by Kimco Section 2.07, prepay, Loans and reborrow under this Section 2.01. In connection with the transactions on any Funding Date, the Agent may in its sole discretion grant the Borrower a temporary waiver for a specified period of time (which, for the avoidance of doubt, shall last for a period of no longer than 5 Business Days) to perform its obligations under clauses (i) or (ii) of the penultimate sentence of clause (c) of Section 2.02 and to fulfill the conditions set forth in Section 4.03 (other than clauses (a), (b), (c), (d), (f), (g), (m), or (n) thereof). (b) Notwithstanding any other provision of this Agreement which requires Borrowings to be made from the Committed Lenders (or from their related Conduit Lenders) ratably in proportion to the respective Commitments of such Committed Lenders, or which requires payments of principal and interest on such day. If the aggregate amount Loans to be made and allocated, or Loans to be continued or converted, based on Commitment Percentages rather than outstanding principal amounts: (i) if, as a result of Loans so requested any increase in a Committed Lender’s Commitment, its Commitment Percentage is less greater than the Aggregate Commitment as percentage which the Loans of such date, any unused portion Committed Lender and its related Conduit Lenders constitutes of the Aggregate Commitment shall thereupon be cancelled. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the aggregate outstanding amount Loans of all Lenders, then any further Borrowing will be made from such Committed Lender and its related Conduit Lenders on a non-pro-rata basis until their outstanding Loans exceed constitute the Aggregate Commitment.same percentage of all the outstanding Loans as such Committed Lender’s Commitment Percentage, (ii) The failure payments of any Lender to make any Loan required to principal and interest on the Loans will be made by it shall not relieve any other Lender to the Lenders according to the respective outstanding principal amounts of its obligations hereunder.such Loans, and (iii) Subject outstanding Loans will be continued and converted according to Section 2.8 and Section 2.10, Loans may from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined by Kimco and notified to their outstanding principal amounts rather than the Administrative Agent in accordance with Sections 2.2(d) and 2.4. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate Committed Percentages of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of Kimco to repay such Loan in accordance with the terms of this Agreement; provided, further, that each applicable Lender shall at all times comply with the requirements of this Agreement in respect thereto, including Section 2.12, and no Lender shall make any such election if and to the extent the same would cause Kimco to increase its payment obligations hereunderLenders.

Commitment to Lend. (i) Subject to the terms and conditions hereofset forth in this Agreement, each Initial Lender of the Lenders severally agrees to make term loans lend to Kimcothe Borrower and the Borrower may borrow, repay, and reborrow from time to time between the date of this Agreement and the Maturity Date upon notice by the Borrower to the Administrative Agent given in Dollars only (each, an “Initial Loan”), in accordance with §2.5 such sums as may be requested by the Borrower up to a single Borrowing on the Effective Date in an maximum aggregate principal amount outstanding (after giving effect to all Loans then being requested and the payment of Settlement Amounts on the applicable Drawdown Date pursuant to §2.8(a)) at any one time equal to such Lender’s Applicable Commitment then in effect minus such Lender’s Commitment Percentage of the sum of the Maximum Drawing Amount at such time and all Unpaid Reimbursement Obligations at such time; provided that the sum of the aggregate principal amount of all of the Loans at any time outstanding (after giving effect to all Loans then being requested) plus the Maximum Drawing Amount at such Borrowing requested time plus all Unpaid Reimbursement Obligations at such time shall not exceed the Total Commitment then in effect. The Loans shall be made pro rata in accordance with each Lender’s Commitment Percentage. Each request for a Loan shall constitute a representation by Kimco the Borrower that the conditions set forth in §9, in the case of the initial Loans to be made on such day. If the aggregate amount Closing Date, and §10, in the case of Loans so requested is less than all Loans, have been satisfied on the Aggregate Commitment as date of such date, any unused portion of the Aggregate Commitment shall thereupon be cancelled. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the aggregate outstanding amount of Loans exceed the Aggregate Commitment. (ii) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder. (iii) Subject to Section 2.8 and Section 2.10, Loans may from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined by Kimco and notified to the Administrative Agent in accordance with Sections 2.2(d) and 2.4request. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of Kimco to repay such Loan be denominated in accordance with the terms of this Agreement; provided, further, that each applicable Lender shall at all times comply with the requirements of this Agreement in respect thereto, including Section 2.12, and no Lender shall make any such election if and to the extent the same would cause Kimco to increase its payment obligations hereunder.Dollars. §

Commitment to Lend. (ia) Subject to the terms and conditions set forth in Section 10 hereof, each Initial Lender severally agrees to make term loans to Kimco, in Dollars only (each, an “Initial Loan”), in a single Borrowing on the Effective Date in an aggregate principal amount equal to such Lender’s Applicable Percentage of the aggregate amount of such Borrowing requested by Kimco to be made on such day. If the aggregate amount of Loans so requested is less than the Aggregate Commitment as of such date, any unused portion of the Aggregate Commitment Banks severally shall thereupon be cancelled. Notwithstanding anything lend to the contrary contained in this AgreementBorrower, in no event shall and the aggregate outstanding amount of Loans exceed the Aggregate Commitment. (ii) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder. (iii) Subject to Section 2.8 Borrower may borrow, repay, and Section 2.10, Loans may reborrow from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined between the Closing Date and the Maturity Date upon notice by Kimco and notified the Borrower to the Administrative Agent given in accordance with Sections 2.2(dSection 2.8, such sums as are requested by the Borrower up to a maximum aggregate principal amount Outstanding (after giving effect to all amounts requested) and 2.4at any one time equal to such Bank’s Commitment, provided that the Outstanding amount of the Loans (after giving effect to all amounts requested) shall not at any time exceed the Total Commitment. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such LoanThe Loans shall be made pro rata in accordance with each Bank’s Commitment Percentage; provided that the failure of any exercise of such option shall not affect the obligation of Kimco Bank to repay such Loan lend in accordance with this Credit Agreement shall not release any other Bank or the terms of this Agreement; providedAdministrative Agent from their obligations hereunder, further, that each applicable Lender nor shall at all times comply with the requirements of this Agreement any Bank have any responsibility or liability in respect theretoof a failure of any other Bank to lend in accordance with this Credit Agreement. Each request for a Loan and each borrowing hereunder shall constitute a representation and warranty by the Borrower that the conditions set forth in Section 10 have been satisfied on the date of such request. (b) In the event that, including at any time when the conditions precedent for any Loan have been satisfied, a Bank or the Administrative Agent, as the case may be, fails or refuses to fund its portion of such Loan, then, until such time as such Bank or the Administrative Agent, as the case may be, has funded its portion of such Loan, or all of the other Banks and/or the Administrative Agent, as the case may be, have received (in accordance with Section 2.1213.12.3) payment in full of the principal and interest due in respect of such Loan, and no Lender such non-funding Bank or Administrative Agent, as the case may be, shall make not have the right to receive payment of any such election if and to principal, interest or fees from the extent the same would cause Kimco to increase Borrower in respect of its payment obligations hereunderLoans.

Commitment to Lend. (i) Subject to the terms and conditions hereofset forth in this Credit Agreement, each Initial Lender of the Banks severally agrees to make term loans lend to Kimcothe Borrowers and the Borrowers may borrow, in Dollars only (eachrepay, an “Initial Loan”), in a single Borrowing on and reborrow from time to time between the Effective Date and the Maturity Date upon notice by the Borrowers to the Agent given in an accordance with /section/2.6, such sums as are requested by the Borrowers up to a maximum aggregate principal amount outstanding (after giving effect to all amounts requested) at any one time equal to such Lender’s Applicable Percentage Bank's Commitment or, if Bank of Boston Connecticut elects, in its sole discretion, to fund any Loan pursuant to the terms of /section/2.9 hereof, no later than 12:00 noon (Hartford, Connecticut time) on the proposed Drawdown Date of such Loan; PROVIDED that the outstanding aggregate amount of such all Loans shall not at any time exceed at the lesser of (i) the Total Commitment and (ii) the Borrowing requested Base. The Loans shall be made PRO RATA in accordance with each Bank's Commitment Percentage. Each request for a Loan hereunder shall constitute a representation and warranty by Kimco the Borrowers that the conditions set forth in /section/10 and /section/11, in the case of the initial Loans to be made on such day. If the aggregate amount Effective Date, /section//section/10A and 11 in the case of Loans so requested a Loan which is less than an Acquisition Credit Loan, and /section/11 in the Aggregate Commitment as case of all other Loans, have been satisfied on the date of such date, any unused portion of the Aggregate Commitment shall thereupon be cancelled. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the aggregate outstanding amount of Loans exceed the Aggregate Commitmentrequest. (ii) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder. (iii) Subject to Section 2.8 and Section 2.10, Loans may from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined by Kimco and notified to the Administrative Agent in accordance with Sections 2.2(d) and 2.4. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of Kimco to repay such Loan in accordance with the terms of this Agreement; provided, further, that each applicable Lender shall at all times comply with the requirements of this Agreement in respect thereto, including Section 2.12, and no Lender shall make any such election if and to the extent the same would cause Kimco to increase its payment obligations hereunder.

Commitment to Lend. (i) Subject to the terms and conditions hereof, each Initial Lender severally agrees to make term loans to Kimco, in Dollars only (each, an “Initial Loan”), in a single Borrowing on the Effective Date in an aggregate principal amount equal to such Lender’s Applicable Percentage of the aggregate amount of such Borrowing requested by Kimco to be made on such day. If the aggregate amount of Loans so requested is less than the Aggregate Commitment as of such date, any unused portion of the Aggregate Commitment shall thereupon be cancelled. Notwithstanding anything to the contrary contained set forth in this Agreement, in no event shall each of the aggregate outstanding amount of Loans exceed Banks severally agrees to lend to the Aggregate Commitment. Borrowers (iithe "Loans"), and the Borrowers may borrow (and repay and reborrow) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder. (iii) Subject to Section 2.8 and Section 2.10, Loans may from time to time be Eurocurrency Loans or ABR Loansbetween the Closing Date and the Maturity Date, or a combination thereof, as determined upon notice by Kimco and notified the Borrowers to the Administrative Agent given in accordance with Sections 2.2(dSection 2.6, such sums as are requested by the Borrowers for the purposes set forth in Section 7.11 (but subject to the limitations set forth in Section 7.11) up to the lesser of (a) a maximum aggregate principal amount outstanding (after giving effect to all amounts requested and 2.4. Each Lender the amount of Letters of Credit Outstanding including Letters of Credit accepted but unpaid) at its option may make any Loan by causing any domestic one time equal to such Bank's Commitment and (b) such Bank's Commitment Percentage of the sum of (i) the Borrowing Base, LESS (ii) the outstanding principal amount of the Loans, LESS (iii) fifty percent (50%) of the undrawn amount of Letters of Credit supporting unfunded Project Costs, LESS (iv) fifty percent (50%) of the undrawn amount of Third Party Letters of Credit; PROVIDED, FURTHER, that, in all events no Default or foreign branch or Affiliate Event of such Lender Default shall have occurred and be continuing and the Borrowers shall be in compliance with all covenants as required pursuant to make such LoanSection 2.6(ii); provided and PROVIDED, FURTHER, that any exercise the outstanding principal amount of such option the Loans (after giving effect to all amounts requested and the amount of Letters of Credit Outstanding including Letters of Credit accepted but unpaid) shall not affect at any time exceed the obligation of Kimco Total Commitment. The Loans shall be made to repay such Loan the Borrowers PRO RATA in accordance with each Bank's Commitment Percentage. Each request for a Loan hereunder shall constitute a representation and warranty by the terms applicable Borrower that all of this Agreement; providedthe conditions set forth in Section 10 and Section 11, further, that each applicable Lender shall at all times comply with in the requirements case of this Agreement in respect thereto, including Section 2.12the initial Loan, and no Lender Section 11, in the case of all other Loans, have been satisfied on the date of such request. No Bank shall have any obligation to make any such election if and Loans to the extent Borrowers in the same would cause Kimco to increase maximum aggregate principal amount outstanding of more than the principal face amount of its payment obligations hereunderNote.

Commitment to Lend. (ia) Subject to the terms and conditions set forth in Section 10 hereof, each Initial Lender severally agrees to make term loans to Kimco, in Dollars only (each, an “Initial Loan”), in a single Borrowing on the Effective Date in an aggregate principal amount equal to such Lender’s Applicable Percentage of the aggregate amount of such Borrowing requested by Kimco to be made on such day. If the aggregate amount of Loans so requested is less than the Aggregate Commitment as of such date, any unused portion of the Aggregate Commitment Banks severally shall thereupon be cancelled. Notwithstanding anything lend to the contrary contained in this AgreementBorrower, in no event shall and the aggregate outstanding amount of Loans exceed the Aggregate Commitment. (ii) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder. (iii) Subject to Section 2.8 Borrower may borrow, repay, and Section 2.10, Loans may reborrow from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined between the Closing Date and the Maturity Date upon notice by Kimco and notified the Borrower to the Administrative Agent given in accordance with Sections 2.2(dSection 2.7, such sums as are requested by the Borrower up to a maximum aggregate principal amount outstanding (after giving effect to all amounts requested) and 2.4at any one time equal to such Bank's Commitment, provided that the sum of (A) the outstanding amount of the Revolving Credit Loans (after giving effect to all amounts requested) plus (B) the outstanding amount of Competitive Bid Rate Loans shall not at any time exceed the Total Commitment. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such LoanThe Revolving Credit Loans shall be made pro rata in accordance with each Bank's Commitment Percentage; provided that the failure of any exercise of such option shall not affect the obligation of Kimco Bank to repay such Loan lend in accordance with this Credit Agreement shall not release any other Bank or the terms of this Agreement; providedAdministrative Agent from their obligations hereunder, further, that each applicable Lender nor shall at all times comply with the requirements of this Agreement any Bank have any responsibility or liability in respect theretoof a failure of any other Bank to lend in accordance with this Credit Agreement. Each request for a Revolving Credit Loan and each borrowing hereunder shall constitute a representation and warranty by the Borrower that the conditions set forth in Section 10 have been satisfied on the date of such request. (b) In the event that, including Section 2.12at any time when the conditions precedent for any Loan have been satisfied, a Bank or the Administrative Agent, as the case may be, fails or refuses to fund its portion of such Loan, then, until such time as such Bank or the Administrative Agent, as the case may be, has funded its portion of such Loan, or all of the other Banks and/or the Administrative Agent, as the case may be, have received payment in full of the principal and no Lender interest due in respect of such Loan, such non-funding Bank or Administrative Agent, as the case may be, shall make not have the right to receive payment of any such election if and to principal, interest or fees from the extent the same would cause Kimco to increase Borrower in respect of its payment obligations hereunderLoans.

Commitment to Lend. (ia) Subject to the terms and conditions set forth in Section 11 hereof, each Initial Lender severally agrees to make term loans to Kimco, in Dollars only (each, an “Initial Loan”), in a single Borrowing on the Effective Date in an aggregate principal amount equal to such Lender’s Applicable Percentage of the aggregate amount of such Borrowing requested by Kimco to be made on such day. If the aggregate amount of Loans so requested is less than the Aggregate Commitment as of such date, any unused portion of the Aggregate Commitment Banks severally shall thereupon be cancelled. Notwithstanding anything lend to the contrary contained in this AgreementBorrower, in no event shall and the aggregate outstanding amount of Loans exceed the Aggregate Commitment. (ii) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder. (iii) Subject to Section 2.8 Borrower may borrow, repay, and Section 2.10, Loans may reborrow from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined between the Closing Date and the Maturity Date upon notice by Kimco and notified the Borrower to the Administrative Agent given in accordance with Sections 2.2(dSection 2.7, such sums as are requested by the Borrower up to a maximum aggregate principal amount outstanding (after giving effect to all amounts requested) at any one time equal to such Bank's Commitment minus (i) in the case of each of the Co-Agents acting in their capacity as a Bank, the principal amount of any outstanding Swing Loans made by such Co-Agent, and 2.4(ii) such Bank's Commitment Percentage of the sum of the Maximum Drawing Amount and all Unpaid Reimbursement Obligations, provided that the sum of (A) the outstanding amount of the Revolving Credit Loans (after giving effect to all amounts requested) plus (B) the principal amount of outstanding Swing Loans plus (C) the Maximum Drawing Amount plus (D) all Unpaid Reimbursement Obligations plus (E) the outstanding amount of Competitive Bid Rate Loans shall not at any time exceed the Total Commitment. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such LoanThe Revolving Credit Loans shall be made pro rata in accordance with each Bank's Commitment Percentage; provided that the failure of any exercise of such option shall not affect the obligation of Kimco Bank to repay such Loan lend in accordance with this Credit Agreement shall not release any other Bank or the terms of this Agreement; providedAdministrative Agent from their obligations hereunder, further, that each applicable Lender nor shall at all times comply with the requirements of this Agreement any Bank have any responsibility or liability in respect theretoof a failure of any other Bank to lend in accordance with this Credit Agreement. Each request for a Revolving Credit Loan and each borrowing hereunder shall constitute a representation and warranty by the Borrower that the conditions set forth in Section 11 have been satisfied on the date of such request. (b) In the event that, including Section 2.12at any time when the conditions precedent for any Loan have been satisfied, a Bank or the Administrative Agent, as the case may be, fails or refuses to fund its portion of such Loan, then, until such time as such Bank or the Administrative Agent, as the case may be, has funded its portion of such Loan, or all of the other Banks and/or the Administrative Agent, as the case may be, have received payment in full of the principal and no Lender interest due in respect of such Loan, such non- funding Bank or Administrative Agent, as the case may be, shall make not have the right to receive payment of any such election if and to principal, interest or fees from the extent the same would cause Kimco to increase Borrower in respect of its payment obligations hereunderLoans.

Commitment to Lend. (ia) Subject to Upon the terms and subject to the conditions hereofof this Agreement, each Initial the Lender severally agrees to make term loans lend to Kimcothe Company, and the Company may borrow, such amounts as the Company may request at any time and from time to time (but no more frequently than once in Dollars only (each, an “Initial Loan”), in a single Borrowing each calendar quarter) during the period beginning on the Effective Date date hereof and ending on Successful Phase II Clinical Trial Completion with respect to any Licensed Product, provided that any such amount or amounts requested by the Company pursuant to this Section 2.1(a) may not exceed the Development Loan Available Commitment in an effect at the time the Company makes such request, and provided, further, that the maximum aggregate principal amount equal that the Company may borrow pursuant to such Lender’s Applicable Percentage this Section 2.1(a) shall not exceed $15,000,000, subject to adjustment as provided below in this Section 2.1(a). Amounts prepaid pursuant to Section 2.4 may not be reborrowed. For purposes of this Agreement, any amount loaned by the Lender to the Company pursuant to this Section 2.1 (a) is hereinafter referred to as a "Development Loan", and all amounts loaned by the Lender to the Company pursuant to this Section 2.1(a) are hereinafter referred to, collectively, as the "Development Loans". In the event that the Company and the Lender mutually agree that the aggregate amount of development expenses to be incurred by the Company in connection with the development of Licensed Products through and including the date of the first Successful Phase II Clinical Trial Completion of any Licensed Product shall be greater than $15,000,000 (such Borrowing excess being hereinafter referred to as the "Excess Development Costs"), then the maximum aggregate principal amount that the Lender may be required to loan to the Company under this Section 2.1(a) shall increase from $15,000,000 to an amount equal to the sum of $15,000,000 plus the amount of the Excess Development Costs. Notwithstanding any provision in this Agreement to the contrary, if the Lender terminates the Collaboration Agreement under Section 12.6 thereof, the Lender shall no longer be obligated under this Article II to make any further Development Loans to the Company after the effective date of termination of the Collaboration Agreement. (b) The Company shall notify the Lender in writing, not later than 12:00 p.m. Boston time on the third Business Day immediately preceding the Development Loan Drawdown Date specified in such notice (which must be a Business Day), of the principal amount of the Development Loan that the Company is requesting to borrow on such Development Loan Drawdown Date (such notice being referred to as a "Development Loan Request"); provided, however, that if the the principal amount of the Development Loan that the Company requests shall be equal to or greater than $5,000,000, then the Company shall send to the Lender the Development Loan Request with respect thereto not later than 12:00 p.m. Boston time on the fifth Business Day immediately preceding the Development Loan Drawdown Date specified in such Development Loan Request. Subject to the Company making a Development Loan Request on a timely basis pursuant to the foregoing provisions of this Section 2.1(b) and so long as no Event of Default shall have occurred and then be continuing, the Lender shall lend to the Company, in immediately available funds, the principal amount of the Development Loan requested by Kimco the Company in such Development Loan Request not later than the close of business on the Development Loan Drawdown Date specified in such Development Loan Request. (c) Notwithstanding anything expressed or implied in this Agreement (including, without limitation, this Section 2.1) to the contrary, no Development Loan shall be made under this Section 2.1 if and to the extent that, on the Development Loan Drawdown Date that would otherwise be applicable to such Development Loan, (A) the number of shares of Common Stock into which all then outstanding Development Loans (including any Development Loan proposed to be made on such day. If Development Loan Drawdown Date) would otherwise be convertible by either the aggregate amount Company or the Lender pursuant to Section 5.1 or 5.2 hereof (without giving effect, for purposes of Loans so requested this Section 2.1(c), to the provisions of Section 5.1(f) hereof or Section 5.2(f) hereof, respectively) shall represent twenty percent (20%) or more of the shares of Common Stock outstanding as of the close of business on the date that the first Development Loan is made pursuant to this Section 2.1 (the "First Development Loan Drawdown Date") or twenty percent (20%) or more of the voting power of all shares of capital stock of the Company that are issued and outstanding as of the close of business on the First Development Loan Drawdown Date and (B) the Conversion Price in effect on such Development Loan Drawdown Date (it being understood that, for purposes of this Section 2.1(c), such Development Loan Drawdown Date shall be deemed to be the Section 5.1 Conversion Date or the Section 5.2 Conversion Date, as the case may be) shall not be less than the Aggregate Commitment as of such date, any unused portion greater of the Aggregate Commitment then book value or market value per share of Common Stock. This Section 2.1(c) and all of the restrictions and limitations set forth herein shall thereupon be cancelled. Notwithstanding anything to automatically terminate upon any vote by the contrary contained in this Agreement, in no event shall stockholders of the aggregate outstanding amount of Loans exceed Company authorizing the Aggregate Commitment. (ii) The failure conversion of any Lender to make any Loan required to be made by it shall not relieve any other Lender and all Development Loans into shares of its obligations hereunder. (iii) Subject to Section 2.8 and Section 2.10, Loans may from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined by Kimco and notified to the Administrative Agent in accordance with Sections 2.2(d) and 2.4. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of Kimco to repay such Loan Common Stock in accordance with the terms provisions of this Agreement; provided, further, that each applicable Lender shall at all times comply with . Notwithstanding any provision herein or in the requirements of this Collaboration Agreement in respect thereto, including Section 2.12, and no Lender shall make any such election if and to the extent contrary, if the same would cause Kimco Lender is not required, pursuant to increase its payment obligations hereunderthis Section 2.1(c), to make Development Loans, the Company shall continue to commercialize and develop Licensed Products pursuant to the Collaboration Agreement.

Commitment to Lend. (i) Subject to the provisions of §2.4 and the other terms and conditions hereof, each Initial Lender severally agrees to make term loans to Kimco, in Dollars only (each, an “Initial Loan”), in a single Borrowing on the Effective Date in an aggregate principal amount equal to such Lender’s Applicable Percentage of the aggregate amount of such Borrowing requested by Kimco to be made on such day. If the aggregate amount of Loans so requested is less than the Aggregate Commitment as of such date, any unused portion of the Aggregate Commitment shall thereupon be cancelled. Notwithstanding anything to the contrary contained set forth in this Agreement, each of the Banks severally agrees to lend to the Borrower, and the Borrower may borrow, repay, and reborrow from each Bank from time to time between the Closing Date and the Maturity Date upon notice by the Borrower to the Agent given in no event accordance with §2.4, such sums in Dollars or in one or more Alternative Currencies as are requested by the Borrower up to a maximum aggregate principal amount outstanding (after giving effect to all amounts requested) at any one time equal to such Bank’s Commitment; provided that, after giving effect to any such borrowing, (i) the Outstanding Amount of all Loans and Letter of Credit Obligations shall the aggregate outstanding amount of Loans not at any time exceed the Aggregate Commitment. Total Commitment and (ii) The failure the Revolving Credit Exposure of any Lender Bank (exclusive of such Bank’s Bid Rate Loans) shall not at any time exceed such Bank’s Commitment, and provided, further, that at the time the Borrower requests a Revolving Credit Loan and after giving effect to make the making thereof: (i) in the case of any borrowing, all of the conditions in §13 (and in the case of any initial borrowing or other extension of credit on the Closing Date, also the conditions in §12) have been met at the time of such request, and (ii) there has not occurred and is not continuing (or will not occur by reason thereof) any Default or Event of Default; it being acknowledged and agreed that the Borrower shall be permitted to request and borrow Loans if a Non Material Breach (rather than a Default or Event of Default) exists. The Revolving Credit Loans shall be made pro rata in accordance with each Bank’s Commitment Percentage. Each request for a Revolving Credit Loan made pursuant to §2.4 shall constitute a representation and warranty by the Borrower that the conditions set forth in §12 have been satisfied (except to the extent any such condition has been waived and/or deferred in writing by the Agent and the required number of Banks) as of the Closing Date and that the conditions set forth in §13 have been satisfied (except to the extent any such condition has been waived and/or deferred in writing by the Agent and the required number of Banks) on the date of such request and will be satisfied (except to the extent any such condition has been waived and/or deferred in writing by the Agent and the required number of Banks) on the proposed Drawdown Date of the requested Loan or issuance of Letter of Credit, as the case may be, provided that the making of such representation and warranty by the Borrower shall not limit the right of any Bank not to lend if such conditions have not been met. No Revolving Credit Loan or other extension of credit shall be required to be made by it shall not relieve any other Lender of its obligations hereunder. Bank unless (iii) Subject to Section 2.8 and Section 2.10, Loans may from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined by Kimco and notified to the Administrative Agent in accordance with Sections 2.2(d) and 2.4. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of Kimco to repay such Loan in accordance connection with the terms initial Revolving Credit Loan or Letter of this Agreement; provided, further, that each applicable Lender shall at Credit or other extension of credit) all times comply with of the requirements of this Agreement conditions contained in respect thereto, including Section 2.12, and no Lender shall make any such election if and §12 have been satisfied (except to the extent any such condition has been waived and/or deferred in writing by the same would cause Kimco Agent and the required number of Banks) as of the Closing Date and unless all of the conditions set forth in §13 have been met at the time of any request for a Revolving Credit Loan or other extension of credit (except to increase its payment obligations hereunderthe extent any such condition has been waived and/or deferred in writing by the Agent and the required number of Banks).

Commitment to Lend. (i) Subject to the provisions of Section 2.4 and the other terms and conditions hereofset forth in this Agreement, each Initial Lender of the Banks severally agrees to make term loans lend to Kimcothe Borrower, and the Borrower may borrow, repay, and reborrow from each Bank from time to time between the Closing Date and the Maturity Date upon notice by the Borrower to the Agent (with copies to the Agent for each Bank) given in Dollars only (eachaccordance with Section 2.4 hereof, an “Initial Loan”), in such sums as are requested by the Borrower up to a single Borrowing on the Effective Date in an maximum aggregate principal amount outstanding (after giving effect to all amounts requested) at any one time equal to such Bank's Commitment MINUS an amount equal to such Lender’s Applicable Bank's Commitment Percentage MULTIPLIED BY the Maximum Drawing Amount; PROVIDED that the sum of the aggregate amount of such Borrowing requested by Kimco to be made on such day. If the aggregate amount of Loans so requested is less than the Aggregate Commitment as of such date, any unused portion of the Aggregate Commitment shall thereupon be cancelled. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the aggregate outstanding amount of the Revolving Credit Loans (after giving effect to all amounts requested) PLUS, without double-counting the portion, if any, of any Letter of Credit which is drawn and included in the Revolving Credit Loans, all outstanding Reimbursement Obligations shall not at any time exceed the Aggregate Commitment. lesser of (i) the Total Commitment and (ii) The failure the Borrowing Base Availability at such time, and PROVIDED, FURTHER, that at the time the Borrower requests a Revolving Credit Loan and after giving effect to the making thereof: (i) in the case of any Lender borrowing, all of the conditions in Section 13 (and in the case of any initial borrowing, also the conditions in Section 12) have been met at the time of such request, and (ii) there has not occurred and is not continuing (or will not occur by reason of) any Default or Event of Default; it being acknowledged and agreed that the Borrower shall be permitted to make request and borrow Loans if a Non-Material Breach (rather than a Default or Event of Default) exists, PROVIDED that in the event that such Non-Material Breach relates to a Real Estate Asset forming part of the Borrowing Base at such time, such Real Estate Asset shall be excluded from the calculation of Borrowing Base Availability for all purposes in the compliance certificate accompanying any Completed Loan Request. The Revolving Credit Loans shall be made PRO RATA in accordance with each Bank's Commitment Percentage. Each request for a Revolving Credit Loan made pursuant to Section 2.4 hereof shall constitute a representation and warranty by the Borrower that the conditions set forth in Section 12 have been satisfied (except to the extent any such condition has been waived and/or deferred in writing by the Agent and the required number of Banks) as of the Closing Date and that the conditions set forth in Section 13 have been satisfied (except to the extent any such condition has been waived and/or deferred in writing by the Agent and the required number of Banks) on the date of such request and will be satisfied (except to the extent any such condition has been waived and/or deferred in writing by the Agent and the required number of Banks) on the proposed Drawdown Date of the requested Loan or issuance of Letter of Credit, as the case may be, PROVIDED that the making of such representation and warranty by the Borrower shall not limit the right of any Bank not to lend if such conditions have not been met. No Revolving Credit Loan shall be required to be made by it shall not relieve any other Lender of its obligations hereunder. Bank unless (iii) Subject to Section 2.8 and Section 2.10, Loans may from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined by Kimco and notified to the Administrative Agent in accordance with Sections 2.2(d) and 2.4. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of Kimco to repay such Loan in accordance connection with the terms initial Revolving Credit Loan or Letter of this Agreement; provided, further, that each applicable Lender shall at Credit) all times comply with of the requirements of this Agreement conditions contained in respect thereto, including Section 2.12, and no Lender shall make any such election if and 12 have been satisfied (except to the extent any such condition has been waived and/or deferred in writing by the same would cause Kimco Agent and the required number of Banks) as of the Closing Date and unless all of the conditions set forth in Section 13 have been met at the time of any request for a Revolving Credit Loan (except to increase its payment obligations hereunderthe extent any such condition has been waived and/or deferred in writing by the Agent and the required number of Banks).

Commitment to Lend. (ia) Subject to Each of the Banks severally agrees on the terms and subject to the conditions hereofherein set forth that from the date hereof to the Termination Date, each Initial Lender severally agrees it will loan money to the Company in an amount up to the amount of the Bank's Commitment for the term and on the other terms and conditions provided for herein; provided, however, that a Bank shall not be required to make term loans to Kimco, any Revolving Loan which would result in Dollars only (each, an “Initial Loan”), in a single Borrowing on the Effective Date in an aggregate principal amount equal to such Lender’s Applicable Percentage of the aggregate amount of such Borrowing requested its Revolving Loans plus its Applicable Percentage of all outstanding Swingline Loans exceeding its Commitment. The aggregate of all Commitments shall not exceed $600 million, except as provided in Section 3.02(c) below. Each borrowing of Revolving Loans made by Kimco the Company pursuant to this Agreement which bears interest based upon Base Rate or LIBOR shall be made on such day. If the in an aggregate amount of Loans so requested is less than $10.0 million (except the Aggregate Commitment as amount shall be at least $50.0 million in the case of such date, any unused portion one week LIBOR Loans) or an integral multiple of $2.5 million in excess thereof and shall be made from the several Banks ratably in proportion to their respective Commitments. (b) Each of the Aggregate Commitment shall thereupon be cancelled. Notwithstanding anything Swingline Banks severally agrees on the terms and subject to the contrary contained conditions herein set forth, that from the date hereof to the Termination Date, it will loan money to the Company in this Agreement, in no event shall an amount up to the aggregate outstanding amount of its Swingline Commitment, for the term, and on the other terms and conditions provided for herein. Such Swingline Loans, when aggregated with the Swingline Bank's Revolving Loans, may exceed the Swingline Bank's Commitment; provided that at no time shall (a) the sum of all Loans exceed the Aggregate Commitment. (ii) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder. (iii) Subject to Section 2.8 and Section 2.10, Loans may from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined by Kimco and notified to the Administrative Agent in accordance with Sections 2.2(d) and 2.4. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loancombined Commitments; provided that any exercise of such option shall not affect the obligation of Kimco to repay such Loan in accordance with the terms of this Agreement; provided, further, that each applicable Lender shall at all times comply with the requirements of this Agreement in respect thereto, including Section 2.12, and no Lender shall make any such election if and to the extent the same would cause Kimco to increase its payment obligations hereunder.or

Commitment to Lend. (i) Subject to the terms and conditions hereofset forth in this Agreement, each Initial Lender of the Banks severally agrees to make term loans lend to Kimcothe Borrower, and the Borrower may borrow (and repay and reborrow) from time to time between the Closing Date and the Maturity Date upon notice by the Borrower to the Agent given in accordance with Section 2.6, such sums as are requested by the Borrower for the purposes set forth in Section 7.11 up to a maximum aggregate principal amount outstanding (after giving effect to all amounts requested) at any one time equal to such Bank's Commitment, provided, that, in Dollars only (eachall events no Default or Event of Default shall have occurred and be continuing, an “Initial Loan”)and provided, in a single Borrowing on further that at any time the Effective Date in LC Exposure shall be greater than zero or any Loan made pursuant to Section 2.9 shall remain Outstanding, none of the Banks shall have any obligation to have an aggregate principal amount equal to outstanding under this Section 2.1 at any time greater than such Lender’s Applicable Percentage of the aggregate amount of such Borrowing requested by Kimco to be made on such dayBanks' Revolver Commitment. If the aggregate amount of Loans so requested is less than the Aggregate Commitment as of such date, any unused portion of the Aggregate Commitment shall thereupon be cancelled. Notwithstanding anything to the contrary contained in this Agreement, in In no event shall the aggregate outstanding principal amount of the Loans pursuant to this Section 2.1 at any time exceed the Aggregate Commitment. Total Commitment (ii) The failure of any Lender to make or, if the LC Exposure is greater than zero or any Loan required made pursuant to Section 2.9 shall remain Outstanding, the aggregate of the Revolver Commitments) or cause a violation of the covenants set forth in Section 7.15 nor shall the sum of (a) the outstanding principal amount of the Loans made pursuant to this Section 2.1, and (b) the amount of the LC Exposure and Loans made pursuant to Section 2.9 at any time exceed the Total Commitment or cause a violation of the covenants set forth in Section 7.15. The Loans pursuant to Section 2.1 shall be made by it shall not relieve any other Lender of its obligations hereunder. (iii) Subject to Section 2.8 and Section 2.10, Loans may from time to time be Eurocurrency Loans or ABR Loans, or a combination thereof, as determined by Kimco and notified to the Administrative Agent pro rata in accordance with Sections 2.2(d) each Bank's Commitment Percentage or if prior to the LC Expiration Date, the Revolver Commitment Percentage. The funding of a Loan hereunder shall constitute a representation and 2.4. Each Lender at its option may make any warranty by the Borrower that all of the conditions set forth in Section 10 and Section 11, in the case of the initial Loan by causing any domestic or foreign branch or Affiliate and Section 11, in the case of all other Loans, have been satisfied on the date of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of Kimco to repay such Loan in accordance with the terms of this Agreement; provided, further, that each applicable Lender shall at all times comply with the requirements of this Agreement in respect thereto, including Section 2.12, and no Lender shall make any such election if and to the extent the same would cause Kimco to increase its payment obligations hereunderfunding.";