Common use of Conditions Precedent to Initial Loans Clause in Contracts

Conditions Precedent to Initial Loans. The obligation of each ------------------------------------- Lender to make its initial Loan is subject to the conditions precedent that: (a) The Agent shall have received on or before the day of the initial Borrowing the following, each dated on or about the date hereof (except for the documents referred to in clauses (i) and (v)), in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) Copies of the Certificate of Incorporation, or other organizational document of each Loan Party, certified as of a recent date by the Secretary of State of its state of formation or incorporation; (ii) Copies of the Bylaws, if any, of each Loan Party, certified by the Secretary or an Assistant Secretary of such Loan Party; (iii) Copies of resolutions of the Board of Directors or other authorizing documents of each Loan Party, approving the Loan Documents and the Borrowings and the reimbursement obligations under the Letters of Credit issued hereunder; (iv) An incumbency certificate or equivalent document executed by the Secretary or an Assistant Secretary of each Loan Party certifying the names and signatures of the officers of such Loan Party or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder; (v) a good standing certificate for each Loan Party, issued as of a recent date by the Secretary of State of (A) the state in which such Loan Party is incorporated or formed and (B) each state in which it owns material assets and conducts material operations. (vi) The Notes issued by the Borrower to the order of each Lender; (vii) This Agreement, including all exhibits and schedules hereto, duly executed by the Borrower, the Agent, the Syndication Agent and the Lenders; (viii) A Notice of Revolving Loan, executed by the chief financial officer of Borrower; (ix) The Guaranty, duly executed by each Guarantor; (x) The Security Agreement, duly executed by the Borrower, and the Subsidiary Pledge and Security Agreement, duly executed by each Guarantor together with (A) certificates representing the Pledged Shares referred to in Schedule II to each of the Security Agreement and the Subsidiary Pledge and Security Agreement, accompanied by undated stock powers executed in blank, and (B) evidence satisfactory to the Agent that all other actions necessary or advisable to perfect and protect the security interest created by the Security Agreement and the Subsidiary Pledge and Security Agreement have been taken, including delivery to the Agent of financing statements (Forms UCC- 1) duly executed by the Borrower and each Guarantor in form sufficient for filing in all offices in which the Agent or Lenders may consider filing to be appropriate in order to perfect the Lenders' security interest; (xi) Certificates as to coverage under the insurance policies required by the Security Agreement and the Subsidiary Pledge and Security Agreement, each of which shall be endorsed or otherwise amended to include a standard lender's loss payable endorsement and to name the Agent as additional insured, in form and substance satisfactory to the Agent; (xii) The Intellectual Property Security Agreement, duly executed by the Borrower, and the Subsidiary Intellectual Property Security Agreements, duly executed by each Guarantor, each in form sufficient for recording in the United States Patent and Trademark Office and the United States Copyright Office; (xiii) The Fee Letter, duly executed by the Borrower, and such other matters as the Agent acting on behalf of the Lenders may reasonably request. (b) The Borrower shall have paid to the Agent, for distribution (as appropriate) to the Agent and/or the Lenders, the fees payable as required in Section 2.1 and as specified in the Fee Letter. (c) The Borrower shall have paid to Syndication Agent the fees payable as specified in a separate letter between Borrower and Syndication Agent. (d) The Borrower shall have furnished to the Agent and each Lender audited consolidated financial statements of Borrower for Borrower's fiscal year ended December 31, 1997, prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm acceptable to the Agent; (e) The Borrower shall have executed and delivered all financing statements, notices, and other documents necessary or appropriate to perfect (to the extent such perfection can be effected by such filings) the security interest of Agent in the assets of Borrower in the U.S. covered by the Security Agreement, and such financing statements, notices and other documents shall have been filed or recorded with or delivered to the appropriate Person; (f) The Borrower shall have delivered to Lenders one or more legal opinions from its counsel, which opinions shall be acceptable to Lenders; (g) All corporate and legal proceedings and all instruments and documents in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in content, form and substance to the Agent and its counsel, and each Lender, and the Agent and the Agent's counsel shall have received any and all further information and documents which the Agent or such counsel may reasonably have requested in connection therewith, such documents where appropriate to be certified by proper corporate or governmental authorities.

Conditions Precedent to Initial Loans. The obligation of each ------------------------------------- No Lender shall be obligated to make its initial Loan is subject to the conditions precedent that: (a) The Agent shall have received on or before the day Pro Rata Share of the initial Borrowing Initial Loans, or to take, fulfill, or perform any other action hereunder, until the following, each dated on or about the date hereof (except for the documents referred following have been delivered to in clauses (i) and (v))Agent, in form and substance satisfactory to the Agent and Lenders (except for the Notes) in sufficient copies for each Lender:date on which Lenders make the Initial Loans, the “Closing Date”): (ia) Copies a counterpart of this Agreement duly executed by each Loan Party, each Lender and Agent; (b) a certificate duly executed by the Certificate of Incorporation, or other organizational document Secretary of each Loan Party, in substantially the form attached as Exhibit A, providing verification of incumbency and certifying as to and attaching (i) such Loan Party’s board resolutions approving the transactions contemplated by the Loan Documents and (ii) such Loan Party’s formation documents certified by the Secretary of State of such Loan Party’s state of formation as of a recent date reasonably acceptable to Agent and such Loan Party’s governing documents; (c) copies of UCC financing statements, collateral assignments, and termination statements, with respect to the Collateral, as Agent shall reasonably request, in each case in form and substance ready for filing; (d) certificates of insurance evidencing the insurance coverage and additional insured and lender loss payable endorsements reasonably satisfactory to Agent, in each case as required pursuant to Section 6.4; (e) certified copies, dated as of a recent date reasonably acceptable to Agent, of UCC, judgment, bankruptcy and tax lien search results demonstrating that there are no Liens on the Collateral other than Permitted Liens; (f) a certificate of status/good standing of each Loan Party from the jurisdiction of such Loan Party’s organization and a certificate of foreign qualification from each jurisdiction where such Loan Party’s failure to be so qualified could reasonably be expected to have a Material Adverse Effect, in each case certified as of a recent date by the Secretary of State of its state of formation or incorporationreasonably acceptable to Agent; (iig) Copies an Access Agreement for each leased location or third party location to the extent required pursuant to Section 6.6; (h) an executed legal opinion of the BylawsLoan Parties’ counsel, if anyin form and substance reasonably satisfactory to Agent; (i) an Automatic Payment Authorization Agreement, of duly executed by Borrower; (j) a Perfection Certificate completed and duly executed by each Loan Party, certified by the Secretary or an Assistant Secretary of such Loan Party; (iiik) Copies of resolutions of the Board of Directors or other authorizing documents of a Disbursement Letter, duly executed by each Loan Party, approving the Loan Documents Agent and the Borrowings and the reimbursement obligations under the Letters of Credit issued hereunderLenders; (ivl) An incumbency certificate one or equivalent document executed by the Secretary or an Assistant Secretary of each Loan Party certifying the names and signatures of the officers of such Loan Party or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder; (v) a good standing certificate for each Loan Party, issued as of a recent date by the Secretary of State of (A) the state in which such Loan Party is incorporated or formed and (B) each state in which it owns material assets and conducts material operations. (vi) The Notes issued by the Borrower to the order of each Lender; (vii) This Agreement, including all exhibits and schedules heretomore Account Control Agreements, duly executed by the Borrower, the Agent, the Syndication Agent applicable Loan Parties and the Lendersapplicable depository or financial institution, to the extent required pursuant to Section 6.10; (viiim) A Notice of Revolving Loan, executed by the chief financial officer of Borrower; (ix) The Guaranty, duly executed by each Guarantor; (x) The Security Agreement, duly executed by the Borrower, and the Subsidiary a Pledge and Security Agreement, duly executed by each Guarantor Loan Party, together with (A) the certificates representing the Pledged Shares referred and instruments required to be delivered in Schedule II to each of the Security Agreement connection therewith and the Subsidiary Pledge related undated powers and Security Agreement, accompanied by undated stock powers endorsements duly executed in blank, and (B) evidence satisfactory to the Agent that all other actions necessary or advisable to perfect and protect the security interest created by the Security Agreement and the Subsidiary Pledge and Security Agreement have been taken, including delivery to the Agent of financing statements (Forms UCC- 1) duly executed by the Borrower and each Guarantor in form sufficient for filing in all offices in which the Agent or Lenders may consider filing to be appropriate in order to perfect the Lenders' security interest; (xin) Certificates as to coverage under the insurance policies required by the Security Agreement and the Subsidiary Pledge and Security Agreement, each of which shall be endorsed or otherwise amended to include a standard lender's loss payable endorsement and to name the Agent as additional insured, in form and substance satisfactory to the Agent; (xii) The Intellectual Property Security Agreement, duly executed Agreement required by the Borrower, and the Subsidiary Intellectual Property Security AgreementsSection 3.1, duly executed by each Guarantor, each in form sufficient for recording in the United States Patent and Trademark Office and the United States Copyright OfficeLoan Party; (xiiio) The Fee Letter, duly executed evidence that Borrower has received at least $12,000,000 in unrestricted net cash proceeds from BARDA for achieving the labeling plan milestone under the BARDA Contract; (p) a certificate from an authorized officer of Borrower confirming that each of the conditions in Section 4.2 applicable to funding of the Initial Loans have been satisfied; and (q) all fees required to be paid by Borrower under the BorrowerLoan Documents, and such other matters as the Agent acting on behalf of the Lenders may reasonably request. (b) The Borrower shall have paid to the Agent, for distribution (as appropriate) to the Agent and/or the Lenders, the fees payable as required in Section 2.1 and as specified in the Fee Letter. (c) The Borrower shall have paid to Syndication Agent the fees payable as specified in a separate letter between Borrower and Syndication Agent. (d) The Borrower shall have furnished to the reimbursed Agent and each Lender audited consolidated financial statements Lenders for all fees, costs and expenses presented as of Borrower for Borrower's fiscal year ended December 31, 1997, prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm acceptable to the Agent; (e) The Borrower shall have executed and delivered all financing statements, notices, and other documents necessary or appropriate to perfect (to the extent such perfection can be effected by such filings) the security interest of Agent in the assets of Borrower in the U.S. covered by the Security Agreement, and such financing statements, notices and other documents shall have been filed or recorded with or delivered to the appropriate Person; (f) The Borrower shall have delivered to Lenders one or more legal opinions from its counsel, which opinions shall be acceptable to Lenders; (g) All corporate and legal proceedings and all instruments and documents in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in content, form and substance to the Agent and its counsel, and each Lender, and the Agent and the Agent's counsel shall have received any and all further information and documents which the Agent or such counsel may reasonably have requested in connection therewith, such documents where appropriate to be certified by proper corporate or governmental authoritiesClosing Date.

Conditions Precedent to Initial Loans. The obligation of each ------------------------------------- Lender Bank to make its the initial Loan is Loans under or pursuant to this Agreement on the date hereof shall be subject to the following conditions precedent thatprecedent: (ai) The Agent Each Loan Party shall have executed and delivered to Bank, or caused to have been executed and delivered to Bank, all such instruments, agreements, certificates, opinions, financial statements, appraisals, evidence of title, evidence of insurance, environmental audits, and other information and other documents as Bank shall reasonably require, and all of the foregoing shall be in form and content acceptable to Bank and all instruments and agreements shall be in full force and effect and binding and enforceable obligations of such Loan Party and, to the extent that it is a party thereto or otherwise bound thereby, of each other Person who may be a party thereto or bound thereby including without limitation: (A) evidence of existence, good standing, qualification to conduct business and authority for such Loan Party and signatory on behalf of such Loan Party; (B) all notes, guaranties, security agreements, mortgages, deeds of trust, pledge agreements, assignments, financing statements and other documents requested by Bank to evidence the Indebtedness or to create, protect or perfect Liens upon the Collateral required by Bank as security for the Indebtedness and to accord Bank a perfected security position in the Collateral, subject only to Permitted Encumbrances; (C) a guaranty agreement from each Guarantor required by Bank; and (D) such other documents or agreements of security, assurances of Loan Document validity, legality and enforceability, and appropriate assurances of validity, perfection and priority of Lien as Bank may request, and Bank shall have received proof that appropriate security agreements, financing statements, mortgages, deeds of trust, collateral and other documents covering the Collateral shall have been executed and delivered by the appropriate Persons and recorded or filed in such jurisdictions and such other steps shall have been taken as necessary to perfect and protect, subject only to Permitted Encumbrances, the Liens granted thereby. (ii) All actions, proceedings, instruments and documents required to carry out the borrowings and transactions contemplated by this Agreement or any other Loan Document or incidental thereto, and all other related legal matters, shall have been satisfactory to and approved by Bank. (iii) Borrower shall pay to Bank all fees and expenses (including, but not limited to reasonable attorney’s fees, recordation costs, if any) incurred or required to be paid in connection with the execution and delivery of this Agreement and the related Loan Documents. (iv) Bank shall have received copies of organizational documents of the Loan Parties. (v) An audit of Borrower’s accounts, inventory, and any other Collateral required by Bank, in form and content acceptable to Bank, shall have been completed. (vi) Borrower shall deliver to Bank pro forma financial statements, aged no more than 60 days from the date of this Agreement, and a Compliance Certificate, demonstrating pro forma compliance with financial covenants specified in Sections 4(k) and 4(l). (vii) Bank shall have received background checks on or before key personnel, which background checks shall be in form and content acceptable to Bank. (viii) Borrower shall deliver to Bank a borrowing base report, in form and detail satisfactory to Bank, which report shall demonstrate at least $900,000 of borrowing availability under the day Advance Formula after giving effect to the aggregate amount of the initial Borrowing Loan requested under the followingRevolving Credit Note, each together with supporting documentation thereto (detailing accounts receivable, accounts payable, and Inventory), all dated on or about no earlier than 60 days prior to the date hereof hereof. (except ix) Borrower shall deliver to Bank, in form and detail satisfactory to Bank, evidence of accounts receivable insurance for the documents referred benefit of the Bank. (x) Satisfactory receipt and review of pre-funding accounts receivable and inventory examination. (xi) Bank shall have received an upfront commitment fee in the amount of $156,250. (xii) Borrower shall deliver to in clauses Bank a Compliance Certificate which shall demonstrate on a pro forma basis a Total Senior Funded Debt to Adjusted EBITDA Ratio of less than 3.0 to 1.0 and Total Funded Debt to Adjusted EBITDA Ratio of less than 4.0 to 1.0. (ixiii) and (v))Bank shall have received the Management Fee Subordination Agreement executed by Navigation Capital Partners, Inc. in form and substance satisfactory to Bank, together with copies of all documents evidencing, guarantying, securing or otherwise pertaining to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) Copies of the Certificate of Incorporation, or other organizational document of each Loan Party, certified as of a recent date by the Secretary of State of its state of formation or incorporation; (ii) Copies of the Bylaws, if any, of each Loan Party, certified by the Secretary or an Assistant Secretary of such Loan Party; (iii) Copies of resolutions of the Board of Directors or other authorizing documents of each Loan Party, approving the Loan Documents and the Borrowings and the reimbursement obligations under the Letters of Credit issued hereunder; (iv) An incumbency certificate or equivalent document executed by the Secretary or an Assistant Secretary of each Loan Party certifying the names and signatures of the officers of such Loan Party or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder; (v) a good standing certificate for each Loan Party, issued as of a recent date by the Secretary of State of (A) the state in which such Loan Party is incorporated or formed and (B) each state in which it owns material assets and conducts material operationsmanagement fees described therein. (vixiv) The Notes issued by Bank shall have received the Borrower to the order of each Lender; (vii) This Agreement, including all exhibits and schedules hereto, duly ▇▇▇▇▇▇ Micro Subordination Agreement executed by the Borrower, the Agent, the Syndication Agent and the Lenders; (viii) A Notice of Revolving Loan, executed by the chief financial officer of Borrower; (ix) The Guaranty, duly executed by each Guarantor; (x) The Security Agreement, duly executed by the Borrower, and the Subsidiary Pledge and Security Agreement, duly executed by each Guarantor together with (A) certificates representing the Pledged Shares referred to in Schedule II to each of the Security Agreement and the Subsidiary Pledge and Security Agreement, accompanied by undated stock powers executed in blank, and (B) evidence satisfactory to the Agent that all other actions necessary or advisable to perfect and protect the security interest created by the Security Agreement and the Subsidiary Pledge and Security Agreement have been taken, including delivery to the Agent of financing statements (Forms UCC- 1) duly executed by the Borrower and each Guarantor in form sufficient for filing in all offices in which the Agent or Lenders may consider filing to be appropriate in order to perfect the Lenders' security interest; (xi) Certificates as to coverage under the insurance policies required by the Security Agreement and the Subsidiary Pledge and Security Agreement, each of which shall be endorsed or otherwise amended to include a standard lender's loss payable endorsement and to name the Agent as additional insured, ▇▇▇▇▇▇ Micro in form and substance satisfactory to Bank, together with copies of all documents evidencing, guarantying, securing or otherwise pertaining to the Agent; (xii) The Intellectual Property Security Agreement, duly executed by the Borrower, and the Subsidiary Intellectual Property Security Agreements, duly executed by each Guarantor, each in form sufficient for recording in the United States Patent and Trademark Office and the United States Copyright Office; (xiii) The Fee Letter, duly executed by the Borrower, and such other matters as the Agent acting on behalf of the Lenders may reasonably request▇▇▇▇▇▇ Micro Debt. (bxv) The Borrower shall have paid to the Agent, for distribution (as appropriate) to the Agent and/or the Lenders, the fees payable as required in Section 2.1 and as specified in the Fee Letter. (c) The Borrower shall have paid to Syndication Agent the fees payable as specified in a separate letter between Borrower and Syndication Agent. (d) The Borrower shall have furnished to the Agent and each Lender audited consolidated financial statements of Borrower for Borrower's fiscal year ended December 31, 1997, prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm acceptable to the Agent; (e) The Borrower shall have executed and delivered all financing statements, notices, and other documents necessary or appropriate to perfect (to the extent such perfection can be effected by such filings) the security interest of Agent in the assets of Borrower in the U.S. covered by the Security Agreement, and such financing statements, notices and other documents shall have been filed or recorded with or delivered to the appropriate Person; (f) The Borrower shall have delivered to Lenders one or more legal opinions from its counsel, which opinions shall be acceptable to Lenders; (g) All corporate and legal proceedings and all instruments and documents in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in content, form and substance to the Agent and its counsel, and each Lender, and the Agent and the Agent's counsel Bank shall have received any and all further information and documents which the Agent such other reports or such counsel due diligence materials as Bank may reasonably have requested in connection therewith, such documents where appropriate to be certified by proper corporate or governmental authoritiesrequest.

Conditions Precedent to Initial Loans. The obligation of each ------------------------------------- Lender to make its initial Loan hereunder is subject to the satisfaction of the following conditions precedent thatprecedent: (a) The Agent shall have received on or before the day Administrative Agent’s receipt of the initial Borrowing the following, each dated on or about the date hereof (except for the documents referred to in clauses (i) and (v)), in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) Copies of the Certificate of Incorporation, or other organizational document of each Loan Party, certified as of a recent date by the Secretary of State of its state of formation or incorporation; (ii) Copies of the Bylaws, if any, of each Loan Party, certified by the Secretary or an Assistant Secretary of such Loan Party; (iii) Copies of resolutions of the Board of Directors or other authorizing documents of each Loan Party, approving the Loan Documents and the Borrowings and the reimbursement obligations under the Letters of Credit issued hereunder; (iv) An incumbency certificate or equivalent document executed by the Secretary or an Assistant Secretary of each Loan Party certifying the names and signatures of the officers of such Loan Party or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder; (v) a good standing certificate for each Loan Party, issued as of a recent date by the Secretary of State of (A) the state in which such Loan Party is incorporated or formed and (B) each state in which it owns material assets and conducts material operations. (vi) The Notes issued by the Borrower to the order of each Lender; (vii) This Agreement, including all exhibits and schedules hereto, duly executed by the Borrower, the Agent, the Syndication Agent and the Lenders; (viii) A Notice of Revolving Loan, executed by the chief financial officer of Borrower; (ix) The Guaranty, duly executed by each Guarantor; (x) The Security Agreement, duly executed by the Borrower, and the Subsidiary Pledge and Security Agreement, duly executed by each Guarantor together with (A) certificates representing the Pledged Shares referred to in Schedule II to each of the Security Agreement and the Subsidiary Pledge and Security Agreement, accompanied by undated stock powers executed in blank, and (B) evidence satisfactory to the Agent that all other actions necessary or advisable to perfect and protect the security interest created by the Security Agreement and the Subsidiary Pledge and Security Agreement have been taken, including delivery to the Agent of financing statements (Forms UCC- 1) duly executed by the Borrower and each Guarantor in form sufficient for filing in all offices in which the Agent or Lenders may consider filing to be appropriate in order to perfect the Lenders' security interest; (xi) Certificates as to coverage under the insurance policies required by the Security Agreement and the Subsidiary Pledge and Security Agreement, each of which shall be endorsed originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise amended to include specified, each properly executed by a standard lender's loss payable endorsement Responsible Officer of the Borrower, if applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date and to name in the Agent as additional insuredcase of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent: (i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; (xiiii) The Intellectual Property Security Agreementif so requested within three Business Days of the Closing Date, duly a Note executed by the Borrower in favor of each requesting Lender; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party; (iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and General Partner is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction; (v) favorable opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for the Borrower, and Fulbright & ▇▇▇▇▇▇▇▇ LLP, special Texas and New York counsel to the Subsidiary Intellectual Property Security AgreementsBorrower, duly executed by addressed to the Administrative Agent and each Guarantor, each in form sufficient for recording in the United States Patent and Trademark Office and the United States Copyright OfficeLender; (xiiivi) The Fee Letterthe Audited Financial Statements; (vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) have been satisfied, duly executed by (B) that there has been no event or circumstance since the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) the current Debt Ratings, and (D) the Borrower, ’s true and correct U.S. taxpayer identification number; and (viii) such other matters assurances, certificates, documents, consents or opinions as the Administrative Agent acting on behalf of the Lenders may reasonably requestrequire. (b) The All consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party shall have paid to the Agent, for distribution (as appropriate) to the Agent and/or the Lenders, the fees payable as required been obtained and shall be in Section 2.1 full force and as specified in the Fee Lettereffect. (c) The There shall not have occurred during the period from the date of the Audited Financial Statements through and including the Closing Date any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be no actions, suits, investigations, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower shall or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate could reasonably be expected to have paid to Syndication Agent the fees payable as specified in a separate letter between Borrower and Syndication AgentMaterial Adverse Effect. (d) The Borrower Any fees, including any arrangement fees, agency fees and upfront fees, and any expenses of the Arrangers and Administrative Agent, in each case, as agreed in writing by the Borrower, required to be paid on or before the Closing Date shall have furnished to the Agent and each Lender audited consolidated financial statements of Borrower for Borrower's fiscal year ended December 31, 1997, prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm acceptable to the Agent;been paid. (e) The Borrower shall have executed paid all reasonable fees, charges and delivered all financing statements, notices, and other documents necessary or appropriate disbursements of counsel to perfect (the Administrative Agent to the extent such perfection can be effected by such filings) invoiced prior to or on the security interest Closing Date. Without limiting the generality of Agent in the assets provisions of Borrower in the U.S. covered by the Security Agreementlast paragraph of Section 9.03, and such financing statements, notices and other documents shall have been filed or recorded with or delivered to the appropriate Person; (f) The Borrower shall have delivered to Lenders one or more legal opinions from its counsel, which opinions shall be acceptable to Lenders; (g) All corporate and legal proceedings and all instruments and documents in connection for purposes of determining compliance with the transactions contemplated by conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be reasonably deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory in content, form and substance to a Lender unless the Administrative Agent and its counsel, and each Lender, and the Agent and the Agent's counsel shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide the Borrower with a copy of any and all further information and documents which such notice received by the Agent or such counsel may reasonably have requested in connection therewith, such documents where appropriate to be certified by proper corporate or governmental authoritiesAdministrative Agent.

Conditions Precedent to Initial Loans. The obligation of each ------------------------------------- Lender the Lenders to make its fund the initial Loan is Loans shall be subject to the satisfaction of each of the following conditions precedent thaton or prior to the Closing Date: (a) The Lenders and the Agent shall have received on or before the day each of the initial Borrowing the following, in each dated on or about the date hereof (except for the documents referred to in clauses (i) and (v)), case in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each LenderLenders: (i) Copies the Credit Documents, duly authorized, executed and delivered by each of the Certificate of Incorporation, or other organizational document of each Loan Party, certified as of a recent date by parties thereto; (including the Secretary of State of its state of formation or incorporationGuaranty); (ii) Copies judgment lien and UCC searches, and such other searches of the Bylawsrecords of Government Instrumentalities as the Agent shall require, if anyperformed with respect to the Borrowers, the Obligors and each of each Loan Party, certified by the Secretary or an Assistant Secretary of such Loan Partytheir Subsidiaries in all relevant jurisdictions; (iii) Copies the legal opinion of resolutions Borrowers' Counsel in the form of the Board of Directors or other authorizing documents of each Loan Party, approving the Loan Documents and the Borrowings and the reimbursement obligations under the Letters of Credit issued hereunderExhibit B; (iv) An incumbency certificate or equivalent document executed by such other legal opinions as the Secretary or an Assistant Secretary of each Loan Party certifying the names and signatures of the officers of such Loan Party or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunderLenders may reasonably request; (v) a good standing certificate for each Loan Party, issued as of a recent date by the Secretary of State of certified copies of: (A) the state in which such Loan Party articles of incorporation and by-laws (or other organizational documents) of each of the Borrowers and each Obligor (that is incorporated or formed and not an individual); (B) good standing certificates with respect to the Borrowers and each state Obligor (that is not an individual or a trust) issued by the appropriate authority in the applicable jurisdiction of organization; (C) incumbency certificates for the signatories of the Borrowers and each Obligor (that is not an individual), and resolutions of the Borrowers and each Obligor (that is not an individual) approving the Credit Documents to which it owns material assets is a party and conducts material operationsthe transactions contemplated thereby; and (D) a Budget for calendar years 1998-2002 and all combined financial statements of the Borrowers and their combined Subsidiaries requested by the Lenders; provided, that the Borrowers must deliver a Budget to the Lenders and the Agent on a quarterly basis for so long as any Loan is outstanding. (vi) The Notes issued certificates of each of the Borrowers and Obligors certifying that: (A) all Credit Documents executed by the Borrower Borrowers and Obligors on or prior to the order Closing Date are in full force and effect, the Borrowers and the Obligors are in compliance with all covenants and provisions thereof, and no breach or event of each Lenderdefault (or any event which would become a breach or event of default with the giving of notice or passage of time or both) has occurred and is continuing under any such Credit Document; (viiB) This Agreement, including all exhibits representations and schedules hereto, duly executed by warranties of the Borrower, the Agent, the Syndication Agent Borrowers and the LendersObligors contained in the Credit Documents are true, correct and complete in all material respects; (viiiC) A Notice all financial statements and information provided to the Lenders are true, correct and complete in all material respects; each balance sheet fairly presents the consolidated financial position of Revolving Loanthe Borrowers, executed by the chief Guarantors, CGX and their Subsidiaries as at the date indicated and was prepared in accordance with GAAP except as specifically noted therein; there has occurred no material adverse change in the financial officer position of Borrowerthe Borrowers, the Guarantors, CGX and their Subsidiaries since the date of the most recent balance sheet provided to the Lenders; and the financial statements (or the footnotes thereto) provided to the Lenders disclose all liabilities, contingent or otherwise, of the Borrowers, the Guarantors, CGX and their Subsidiaries required to be disclosed in accordance with GAAP; the Borrowers are currently in discussions with their accounting firms with respect to the proper accounting treatment of certain options and other non-cash compensation arrangements that have been or may be entered into with certain management employees, the results of which will result in additional non-cash charges to income for fiscal 1997 and subsequent years; and (D) no act, event or circumstance has occurred with respect to the Borrowers, the Obligors or any of their Subsidiaries or otherwise which has had or could have a Material Adverse Effect; (ixb) The Guaranty, duly executed by each Guarantor; (x) The Security Agreement, duly executed by the Borrower, and the Subsidiary Pledge and Security Agreement, duly executed by each Guarantor together with (A) certificates representing the Pledged Shares referred to in Schedule II to each of the Security Warrant Agreement and the Subsidiary Pledge Warrant Registration Rights Agreement shall have been duly authorized, executed and Security Agreementdelivered by the parties thereto and Warrants representing 3.0% of the fully diluted common stock of the Warrant Issuers shall have been duly authorized, accompanied executed and delivered to the Lenders. (c) All Taxes, fees and expenses required to be paid by undated stock powers executed the Borrowers on or before the Closing Date shall have been paid. (d) All conditions precedent set forth in blankSection 3.2 shall have been ----------- satisfied. (e) The Borrowers and Obligors shall have obtained all Required Approvals, except for those which are obtainable only at a later stage and which the Lenders are satisfied, on the basis of evidence provided by the Borrowers, will be obtainable in the ordinary course prior to the time required, and all Required Approvals obtained shall be final, nonappealable and not subject to any onerous or unusual conditions. (Bf) evidence satisfactory A First-Priority security interest in the Collateral existing on the Closing Date shall have been created and perfected (provided, however, that a second-priority security interest in the RFC Collateral may be created and perfected), and shall continue to be perfected, in favor of the Agent that all other actions necessary or advisable to perfect and protect the security interest created by the Security Agreement and the Subsidiary Pledge and Security Agreement have been taken, including delivery to the Agent of financing statements (Forms UCC- 1) duly executed by the Borrower and each Guarantor in form sufficient for filing in all offices in which the Agent or Lenders may consider filing to be appropriate in order to perfect the Lenders' security interest; (xi) Certificates as to coverage under the insurance policies required by the Security Agreement and the Subsidiary Pledge and Security Agreement, each of which shall be endorsed or otherwise amended to include a standard lender's loss payable endorsement and to name the Agent as additional insured, in form and substance satisfactory to the Agent; (xii) The Intellectual Property Security Agreement, duly executed by the Borrower, and the Subsidiary Intellectual Property Security Agreements, duly executed by each Guarantor, each in form sufficient for recording in the United States Patent and Trademark Office and the United States Copyright Office; (xiii) The Fee Letter, duly executed by the Borrower, and such other matters as the Agent acting on behalf of the Lenders may reasonably request. (b) The Borrower shall have paid to the Agent, for distribution (as appropriate) to the Agent and/or the Lenders, the fees payable as required in Section 2.1 and as specified in the Fee Letter. (c) The Borrower shall have paid to Syndication Agent the fees payable as specified in a separate letter between Borrower and Syndication Agent. (d) The Borrower shall have furnished to the Agent and each Lender audited consolidated financial statements of Borrower for Borrower's fiscal year ended December 31, 1997, prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm acceptable to the Agent; (e) The Borrower shall have executed and delivered all financing statements, noticesrelevant jurisdictions, and there shall be no other documents necessary or appropriate to perfect Liens on the Collateral (to other than on the extent such perfection can be effected by such filings) the security interest of Agent in the assets of Borrower in the U.S. covered by the Security Agreement, and such financing statements, notices RFC Collateral and other documents shall have been filed or recorded with or delivered to the appropriate Person; (f) The Borrower shall have delivered to Lenders one or more legal opinions from its counsel, which opinions shall be acceptable to Lenders;than Permitted Liens). (g) All corporate A duly executed satisfaction and legal proceedings and release of all instruments and documents in connection with liens created under the transactions contemplated by this Agreement shall be reasonably First Union Loan Agreement, satisfactory in content, form and substance to the Agent and its counselAgent, and each Lender, and shall be delivered to the Agent and the Agent's counsel a duly executed Form UCC-3 shall have received any and all further information and documents which be delivered to the Agent or such counsel may reasonably have requested a nominee thereof for filing in connection therewith, such documents where all appropriate to be certified by proper corporate or governmental authoritiesplaces.

Conditions Precedent to Initial Loans. The obligation of each ------------------------------------- Lender to make its initial Loan hereunder is subject to the satisfaction of the following conditions precedent thatprecedent: (a) The Agent shall have received on or before the day Administrative Agent’s receipt of the initial Borrowing the following, each dated on or about the date hereof (except for the documents referred to in clauses (i) and (v)), in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) Copies of the Certificate of Incorporation, or other organizational document of each Loan Party, certified as of a recent date by the Secretary of State of its state of formation or incorporation; (ii) Copies of the Bylaws, if any, of each Loan Party, certified by the Secretary or an Assistant Secretary of such Loan Party; (iii) Copies of resolutions of the Board of Directors or other authorizing documents of each Loan Party, approving the Loan Documents and the Borrowings and the reimbursement obligations under the Letters of Credit issued hereunder; (iv) An incumbency certificate or equivalent document executed by the Secretary or an Assistant Secretary of each Loan Party certifying the names and signatures of the officers of such Loan Party or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder; (v) a good standing certificate for each Loan Party, issued as of a recent date by the Secretary of State of (A) the state in which such Loan Party is incorporated or formed and (B) each state in which it owns material assets and conducts material operations. (vi) The Notes issued by the Borrower to the order of each Lender; (vii) This Agreement, including all exhibits and schedules hereto, duly executed by the Borrower, the Agent, the Syndication Agent and the Lenders; (viii) A Notice of Revolving Loan, executed by the chief financial officer of Borrower; (ix) The Guaranty, duly executed by each Guarantor; (x) The Security Agreement, duly executed by the Borrower, and the Subsidiary Pledge and Security Agreement, duly executed by each Guarantor together with (A) certificates representing the Pledged Shares referred to in Schedule II to each of the Security Agreement and the Subsidiary Pledge and Security Agreement, accompanied by undated stock powers executed in blank, and (B) evidence satisfactory to the Agent that all other actions necessary or advisable to perfect and protect the security interest created by the Security Agreement and the Subsidiary Pledge and Security Agreement have been taken, including delivery to the Agent of financing statements (Forms UCC- 1) duly executed by the Borrower and each Guarantor in form sufficient for filing in all offices in which the Agent or Lenders may consider filing to be appropriate in order to perfect the Lenders' security interest; (xi) Certificates as to coverage under the insurance policies required by the Security Agreement and the Subsidiary Pledge and Security Agreement, each of which shall be endorsed originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise amended to include specified, each properly executed by a standard lender's loss payable endorsement Responsible Officer of the Borrower, if applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date and to name in the Agent as additional insuredcase of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent: (i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; (xiiii) The Intellectual Property Security Agreementif so requested within three Business Days of the Closing Date, duly a Note executed by the Borrower in favor of each requesting Lender; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party; (iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and General Partner is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction; (v) favorable opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for the Borrower, and Fulbright & ▇▇▇▇▇▇▇▇ LLP, special Texas and New York counsel to the Subsidiary Intellectual Property Security AgreementsBorrower, duly executed by addressed to the Administrative Agent and each Guarantor, each in form sufficient for recording in the United States Patent and Trademark Office and the United States Copyright OfficeLender; (xiiivi) The Fee Letter, duly executed the Audited Financial Statements; (vii) a certificate signed by the Borrower, and such other matters as the Agent acting on behalf a Responsible Officer of the Lenders may reasonably request. Borrower certifying (A) that the conditions specified in Section 4.02 (a) and (b) The Borrower shall have paid been satisfied, (B) that there has been no event or circumstance since the date of the most recent Audited Financial Statements that has had or could be reasonably expected to the Agenthave, for distribution (as appropriate) to the Agent and/or the Lenders, the fees payable as required in Section 2.1 and as specified either individually or in the Fee Letter. (c) The Borrower shall have paid to Syndication Agent the fees payable as specified in aggregate, a separate letter between Borrower and Syndication Agent. (d) The Borrower shall have furnished to the Agent and each Lender audited consolidated financial statements of Borrower for Borrower's fiscal year ended December 31, 1997, prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm acceptable to the Agent; (e) The Borrower shall have executed and delivered all financing statements, notices, and other documents necessary or appropriate to perfect (to the extent such perfection can be effected by such filings) the security interest of Agent in the assets of Borrower in the U.S. covered by the Security Agreement, and such financing statements, notices and other documents shall have been filed or recorded with or delivered to the appropriate Person; (f) The Borrower shall have delivered to Lenders one or more legal opinions from its counsel, which opinions shall be acceptable to Lenders; (g) All corporate and legal proceedings and all instruments and documents in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in content, form and substance to the Agent and its counsel, and each Lender, and the Agent and the Agent's counsel shall have received any and all further information and documents which the Agent or such counsel may reasonably have requested in connection therewith, such documents where appropriate to be certified by proper corporate or governmental authorities.Material Adverse Effect,

Conditions Precedent to Initial Loans. The obligation of each ------------------------------------- No Lender shall be obligated to make its the Term Loan or the initial Revolving Loan is subject or incur any initial Letter of Credit Obligation, or to take, fulfill, or perform any other action hereunder, until the following have been delivered to the Agent (the date on which the Lenders make the Term Loan and the initial Revolving Loan after all such conditions precedent that:shall have been satisfied in a manner satisfactory to Agent or waived in accordance with this Agreement, the “Closing Date”): (a) The Agent shall have received on or before a counterpart of this Agreement duly executed by each Loan Party; (b) a certificate executed by the day Secretary of each Loan Party, the initial Borrowing form of which is attached hereto as Exhibit C (the following“Secretary’s Certificate”), each dated on or about the date hereof (except for the documents referred to in clauses providing verification of incumbency and attaching (i) such Loan Party’s board resolutions approving the transactions contemplated by this Agreement and the other Debt Documents and (vii) such Loan Party’s governing documents; (c) Notes duly executed by Borrower in favor of each applicable Lender; (d) filed copies of UCC financing statements, collateral assignments, and terminations statements, with respect to the Collateral, as Agent shall request; (e) certificates of insurance evidencing the insurance coverage, and satisfactory additional insured and lender loss payable endorsements, in each case as required pursuant to Section 6.4 herein; (f) current UCC lien, judgment, bankruptcy and tax lien search results demonstrating that there are no other security interests or liens on the Collateral, other than Permitted Liens (as defined below); (g) a Warrant in favor of each Lender (or its affiliate or designee); (h) a certificate of good standing of each Loan Party from the jurisdiction of such Loan Party’s organization and a certificate of foreign qualification from each jurisdiction where such Loan Party’s failure to be so qualified could reasonably be expected to have a Material Adverse Effect (as defined below), in each case as of a recent date acceptable to Agent; (i) a landlord consent and/or bailee letter in favor of Agent executed by the landlord or bailee, as applicable, for any third party location where (a) any Loan Party’s principal place of business, (b) any Loan Party’s books or records or (c) Collateral with an aggregate value in excess of $100,000 is located, a form of which is attached hereto as Exhibit E-1 and Exhibit E-2, as applicable (each an “Access Agreement”); (j) a legal opinion of Loan Parties’ counsel, in form and substance reasonably satisfactory to Agent; (k) a completed EPS set-up form, a form of which is attached hereto as Exhibit G (the “EPS Setup Form”); (l) a completed perfection certificate, duly executed by each Loan Party (the “Perfection Certificate”), a form of which Agent previously delivered to Borrower; (m) the Lockbox Account Agreement and one or more Account Control Agreements (as such terms are defined in Schedule F), in form and substance reasonably acceptable to Agent, duly executed by the applicable Loan Parties and the applicable depository or financial institution, for the Lockbox Account (as such term is defined in Schedule F) and each other deposit and securities account (other than deposit accounts used exclusively for payroll or withholding tax purposes) listed on the Perfection Certificate; (n) a pledge agreement, in form and substance reasonably satisfactory to Agent, executed by each Loan Party and pledging to Agent, for the benefit of itself and the Lenders, a security interest in (a) 100% of the shares of the outstanding capital stock, of any class, of each Subsidiary (as defined below) of each Loan Party that is incorporated under the laws of any State of the United States or the District of Columbia, (b) shares of the outstanding capital stock of any class of each Subsidiary of such Loan Party that is not incorporated under the laws of any State of the United States or the District of Columbia that constitute 65% of the total combined voting power of all capital stock of all classes of such Subsidiary and (c) any and all Indebtedness (as defined in Section 7.2 below) owing to Loan Parties (the “Pledge Agreement”); (o) a guaranty agreement (together with any other guaranty that purports to provide for a guaranty of the Obligation, the “Guaranty”), in form and substance reasonably satisfactory to Agent, executed by each Guarantor; (p) copies of the License Agreement, dated as of August 9, 1999, by and between Borrower and Medtronic, Inc. (as amended, the “Medtronic License Agreement”) and each agreement evidencing the Subordinated Debt (as defined below), and a subordination agreement, in form and substance satisfactory to Agent, executed by Agent, Borrower and Medtronic, Inc. (the Agent and (except for the Notes) in sufficient copies for each Lender:“Medtronic Subordination Agreement”); (iq) Copies duly executed originals of an initial Borrowing Base Certificate from Borrower, dated the Certificate Closing Date, reflecting information concerning Qualified Accounts (as such term is defined in Schedule C) of Incorporation, or other organizational document of each Loan Party, certified Borrower as of a recent date by not more than seven (7) days prior to the Secretary of State of its state of formation or incorporationClosing Date; (ii) Copies of the Bylaws, if any, of each Loan Party, certified by the Secretary or an Assistant Secretary of such Loan Party; (iii) Copies of resolutions of the Board of Directors or other authorizing documents of each Loan Party, approving the Loan Documents and the Borrowings and the reimbursement obligations under the Letters of Credit issued hereunder; (iv) An incumbency certificate or equivalent document executed by the Secretary or an Assistant Secretary of each Loan Party certifying the names and signatures of the officers of such Loan Party or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder; (vr) a good standing certificate for each Loan Party, issued as of a recent date by the Secretary of State of (A) the state in which such Loan Party is incorporated or formed and (B) each state in which it owns material assets and conducts material operations. (vi) The Notes issued by the Borrower to the order of each Lender; (vii) This Agreement, including all exhibits and schedules hereto, duly executed by the Borrower, the Agent, the Syndication Agent and the Lenders; (viii) A Notice of Revolving Loan, executed by the chief financial officer of Borrower; (ix) The Guaranty, duly executed by each Guarantor; (x) The Security Agreement, duly executed by the Borrower, and the Subsidiary Pledge and Security Agreement, duly executed by each Guarantor together with (A) certificates representing the Pledged Shares referred to in Schedule II to each of the Security Agreement and the Subsidiary Pledge and Security Agreement, accompanied by undated stock powers executed in blank, and (B) evidence satisfactory to the Agent that all other actions necessary or advisable to perfect and protect the security interest created by the Security Agreement and the Subsidiary Pledge and Security Agreement have been taken, including delivery to the Agent of financing statements (Forms UCC- 1) duly executed by the Borrower and each Guarantor in form sufficient for filing in all offices in which the Agent or Lenders may consider filing to be appropriate in order to perfect the Lenders' security interest; (xi) Certificates as to coverage under the insurance policies required by the Security Agreement and the Subsidiary Pledge and Security Agreement, each of which shall be endorsed or otherwise amended to include a standard lender's loss payable endorsement and to name the Agent as additional insureddisbursement instruction letter, in form and substance satisfactory to the Agent; (xii) The Intellectual Property Security Agreement, duly executed by the Borrower, and the Subsidiary Intellectual Property Security Agreements, duly executed by each GuarantorLoan Party, each in form sufficient for recording in the United States Patent and Trademark Office and the United States Copyright Office; (xiii) The Fee Letter, duly executed by the Borrower, and such other matters as the Agent acting on behalf of the Lenders may reasonably request. (b) The Borrower shall have paid to the Agent, for distribution (as appropriate) to the Agent and/or the Lenders, the fees payable as required in Section 2.1 and as specified in the Fee Letter. (c) The Borrower shall have paid to Syndication Agent the fees payable as specified in a separate letter between Borrower and Syndication Agent. (d) The Borrower shall have furnished to the Agent and each Lender audited consolidated financial statements of Borrower for Borrower's fiscal year ended December 31, 1997, prepared in accordance with GAAP, consistently applied, together with an unqualified opinion and indicating the Terms Loans and Revolving Loans to be made on such financial statements of an independent certified public accounting firm acceptable to the AgentClosing Date (the “Disbursement Letter”); (es) The Borrower shall have a fully executed and delivered pay-off letter satisfactory to Agent confirming that all financing statements, notices, of the Indebtedness and other obligations owing to Horizon Technology Funding Company, LLC (“Horizon”) under that certain Venture Loan and Security Agreement dated as of May 24, 2005, as amended (the “Existing Indebtedness”) will be repaid in full from the proceeds of the Term Loan and any Revolving Loan made on the Closing Date and all liens upon any Loan Party’s property in favor of Horizon shall be terminated immediately upon such payment; (t) all other documents and instruments as Agent may reasonably deem necessary or appropriate to perfect effectuate the intent and purpose of this Agreement (together with the Agreement, Note, the Warrants, the Fee Letter, the Perfection Certificate, the Pledge Agreement, the Guaranty, if any, the Secretary’s Certificate and the Disbursement Letter, and all other agreements, instruments, documents and certificates executed and/or delivered to the extent such perfection can be effected by such filings) the security interest or in favor of Agent from time to time in connection with this Agreement or the assets of Borrower in transactions contemplated hereby, the U.S. covered by the Security Agreement, and such financing statements, notices and other documents shall have been filed or recorded with or delivered to the appropriate Person“Debt Documents”); (fu) The Agent shall have received an IRS Form 8821, in form and substance satisfactory to Agent; and (v) Agent and Lenders shall have received the fees required to be paid by Borrower, if any, in the respective amounts specified in Section 2.7, and Borrower shall have delivered to Lenders one or more legal opinions from its counsel, which opinions shall be acceptable to Lenders; (g) All corporate and legal proceedings and all instruments and documents in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in content, form and substance to the reimbursed Agent and its counselLenders for all fees, costs and each Lender, and expenses of closing presented as of the Agent and the Agent's counsel shall have received any and all further information and documents which the Agent or such counsel may reasonably have requested in connection therewith, such documents where appropriate to be certified by proper corporate or governmental authoritiesdate of this Agreement.

Conditions Precedent to Initial Loans. The obligation obligations of each ------------------------------------- Lender the Bank to make its the Term Loan, the initial Revolving Loan is and the initial Acquisition Facility Loan are subject to the conditions condition precedent that: (a) The Agent that the Bank shall have received on or before the day of the initial Borrowing the following, each dated on or about the date hereof (except for the documents referred to in clauses (i) and (v))received, in form and substance satisfactory to the Agent Bank and (except for its counsel, the Notes) in sufficient copies for each Lenderfollowing: (ia) Copies of the Certificate of Incorporation, or other organizational document of each Loan Party, certified as of a recent date this Agreement duly executed by the Secretary of State of its state of formation or incorporationCredit Parties and the Notes duly executed by the Borrowers; (iib) Copies a certificate of the Bylaws, if any, Clerk or Secretary of each Loan Party, certified by of the Secretary or an Assistant Secretary of such Loan Party; (iii) Copies of Credit Parties with respect to resolutions of the Board of Directors or authorizing the execution and delivery of this Agreement (with respect to all of the Credit Parties) and the Notes (with respect to the Borrowers) and identifying the officer(s) authorized to execute, deliver and take all other authorizing actions required under this Agreement, and providing specimen signatures of such officers; (c) the charter documents of each Loan Party, approving the Loan Documents and the Borrowings and the reimbursement obligations under the Letters of Credit issued hereunder; (iv) An incumbency certificate or equivalent document executed by the Secretary or an Assistant Secretary of each Loan Party certifying the names and signatures of the officers Credit Parties and all amendments and supplements thereto, filed in the office of such Loan Party or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder; (v) a good standing certificate for each Loan Party, issued as of a recent date by the Secretary of State of (A) the state in which such Loan Party is incorporated or formed and (B) each state in which it owns material assets and conducts material operations. (vi) The Notes issued by the Borrower to the order jurisdiction of incorporation of each LenderCredit Party, each certified by said Secretary of State as being a true and correct copy thereof; (viid) This Agreementthe Bylaws of each of the Credit Parties and all amendments and supplements thereto, including all exhibits and schedules hereto, duly executed certified by the Borrower, the Agent, the Syndication Agent Clerk or Secretary of such Credit Party as being a true and the Lenderscorrect copy thereof; (viiie) A Notice a certificate of Revolving Loanthe Secretary of State of the jurisdiction of incorporation of each Credit Party, executed by as to such Credit Party's legal existence and good standing in such jurisdiction and listing all documents on file in the chief financial officer office of Borrowersaid Secretary of State for each Credit Party; (ixf) The Guarantypayment to the Bank of the facility set-up fee pursuant to subsection 2.8(c) and all other fees, duly executed costs and expenses of the Bank required to be paid by each Guarantorthe Borrowers on or before the Closing Date (including, without limitation, the reasonable fees of the Bank's counsel); (xg) The Security Agreement, duly executed by the Borrower, and the Subsidiary Pledge and Security Agreement, duly executed by each Guarantor together with (A) certificates representing the Pledged Shares referred to in Schedule II to each of the Security Agreement and the Subsidiary Pledge and Security Agreement, accompanied by undated stock powers executed in blank, and (B) evidence satisfactory an opinion addressed to the Agent that all other actions necessary or advisable to perfect and protect the security interest created by the Security Agreement and the Subsidiary Pledge and Security Agreement have been takenBank from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, including delivery General Counsel to the Agent of financing statements (Forms UCC- 1) duly executed by the Borrower and each Guarantor in form sufficient for filing in all offices in which the Agent or Lenders may consider filing to be appropriate in order to perfect the Lenders' security interest; (xi) Certificates as to coverage under the insurance policies required by the Security Agreement and the Subsidiary Pledge and Security Agreement, each of which shall be endorsed or otherwise amended to include a standard lender's loss payable endorsement and to name the Agent as additional insuredCredit Parties, in form and substance satisfactory to the AgentBank and its counsel; (xiih) The Intellectual Property Security Agreement, duly executed by the Borrower, and the Subsidiary Intellectual Property Security Agreements, duly executed by each Guarantor, each in form sufficient for recording in the United States Patent and Trademark Office and the United States Copyright Office; (xiii) The Fee Letter, duly executed by the Borrower, and such other matters as the Agent acting on behalf of the Lenders may reasonably request. (b) The Borrower shall have paid an opinion addressed to the Agent, for distribution (as appropriate) Bank from local Connecticut counsel to the Agent and/or the LendersCredit Parties, the fees payable as required in Section 2.1 and as specified in the Fee Letter. (c) The Borrower shall have paid to Syndication Agent the fees payable as specified in a separate letter between Borrower and Syndication Agent. (d) The Borrower shall have furnished to the Agent and each Lender audited consolidated financial statements of Borrower for Borrower's fiscal year ended December 31, 1997, prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm acceptable to the Agent; (e) The Borrower shall have executed and delivered all financing statements, notices, and other documents necessary or appropriate to perfect (to the extent such perfection can be effected by such filings) the security interest of Agent in the assets of Borrower in the U.S. covered by the Security Agreement, and such financing statements, notices and other documents shall have been filed or recorded with or delivered to the appropriate Person; (f) The Borrower shall have delivered to Lenders one or more legal opinions from its counsel, which opinions shall be acceptable to Lenders; (g) All corporate and legal proceedings and all instruments and documents in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in content, form and substance satisfactory to the Agent Bank and its counsel; and (i) such other documents, and each Lendercompletion of such other matters, and as counsel for the Agent and the Agent's counsel shall have received any and all further information and documents which the Agent Bank may deem necessary or such counsel may reasonably have requested in connection therewith, such documents where appropriate to be certified by proper corporate or governmental authoritiesappropriate.

Conditions Precedent to Initial Loans. The obligation of each ------------------------------------- No Lender shall be obligated to make its initial Loan is subject to the conditions precedent that: (a) The Agent shall have received on or before the day Pro Rata Share of the initial Borrowing Initial Loans, or to take, fulfill, or perform any other action hereunder, until the following, each dated on or about the date hereof (except for the documents referred following have been delivered to in clauses (i) and (v))Agent, in form and substance satisfactory to the Agent and Lenders (except for the Notes) in sufficient copies for each Lender:date on which Lenders make the Initial Loans, the “Closing Date”): (ia) Copies a counterpart of this Agreement duly executed by each Loan Party, each Lender and Agent; (b) a certificate duly executed by the Certificate of Incorporation, or other organizational document Secretary of each Loan Party, the form of which is attached as Exhibit A, providing verification of incumbency and certifying as to and attaching (i) such Loan Party’s board resolutions approving the transactions contemplated by the Loan Documents and (ii) such Loan Party’s formation documents certified by the Secretary of State of such Loan Party’s state of formation as of a recent date acceptable to Agent and such Loan Party’s governing documents; (c) Notes duly executed by Borrower in favor of each Lender that has requested a Note; (d) filed copies of UCC financing statements, collateral assignments, and termination statements, with respect to the Collateral, as Agent shall request; (e) certificates of insurance evidencing the insurance coverage required pursuant to Section 6.4; (f) copies, dated as of a recent date acceptable to Agent, of UCC, judgment, intellectual property, bankruptcy and tax lien search results demonstrating that there are no Liens on the Collateral other than Permitted Liens; (g) a certificate of status/good standing of each Loan Party from the jurisdiction of such Loan Party’s organization and a certificate of foreign qualification from each jurisdiction where such Loan Party’s failure to be so qualified would reasonably be expected to have a Material Adverse Effect, in each case certified as of a recent date by the Secretary of State of its state of formation or incorporation; (ii) Copies of the Bylaws, if any, of each Loan Party, certified by the Secretary or an Assistant Secretary of such Loan Party; (iii) Copies of resolutions of the Board of Directors or other authorizing documents of each Loan Party, approving the Loan Documents and the Borrowings and the reimbursement obligations under the Letters of Credit issued hereunder; (iv) An incumbency certificate or equivalent document executed by the Secretary or an Assistant Secretary of each Loan Party certifying the names and signatures of the officers of such Loan Party or other Persons authorized acceptable to sign the Loan Documents and the other documents to be delivered hereunder; (v) a good standing certificate for each Loan Party, issued as of a recent date by the Secretary of State of (A) the state in which such Loan Party is incorporated or formed and (B) each state in which it owns material assets and conducts material operations. (vi) The Notes issued by the Borrower to the order of each Lender; (vii) This Agreement, including all exhibits and schedules hereto, duly executed by the Borrower, the Agent, the Syndication Agent and the Lenders; (viii) A Notice of Revolving Loan, executed by the chief financial officer of Borrower; (ix) The Guaranty, duly executed by each Guarantor; (x) The Security Agreement, duly executed by the Borrower, and the Subsidiary Pledge and Security Agreement, duly executed by each Guarantor together with (A) certificates representing the Pledged Shares referred to in Schedule II to each of the Security Agreement and the Subsidiary Pledge and Security Agreement, accompanied by undated stock powers executed in blank, and (B) evidence satisfactory to the Agent that all other actions necessary or advisable to perfect and protect the security interest created by the Security Agreement and the Subsidiary Pledge and Security Agreement have been taken, including delivery to the Agent of financing statements (Forms UCC- 1) duly executed by the Borrower and each Guarantor in form sufficient for filing in all offices in which the Agent or Lenders may consider filing to be appropriate in order to perfect the Lenders' security interest; (xi) Certificates as to coverage under the insurance policies required by the Security Agreement and the Subsidiary Pledge and Security Agreement, each of which shall be endorsed or otherwise amended to include a standard lender's loss payable endorsement and to name the Agent as additional insured, in form and substance satisfactory to the Agent; (xii) The Intellectual Property Security Agreement, duly executed by the Borrower, and the Subsidiary Intellectual Property Security Agreements, duly executed by each Guarantor, each in form sufficient for recording in the United States Patent and Trademark Office and the United States Copyright Office; (xiii) The Fee Letter, duly executed by the Borrower, and such other matters as the Agent acting on behalf of the Lenders may reasonably request. (b) The Borrower shall have paid to the Agent, for distribution (as appropriate) to the Agent and/or the Lenders, the fees payable as required in Section 2.1 and as specified in the Fee Letter. (c) The Borrower shall have paid to Syndication Agent the fees payable as specified in a separate letter between Borrower and Syndication Agent. (d) The Borrower shall have furnished to the Agent and each Lender audited consolidated financial statements of Borrower for Borrower's fiscal year ended December 31, 1997, prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm acceptable to the Agent; (e) The Borrower shall have executed and delivered all financing statements, notices, and other documents necessary or appropriate to perfect (to the extent such perfection can be effected by such filings) the security interest of Agent in the assets of Borrower in the U.S. covered by the Security Agreement, and such financing statements, notices and other documents shall have been filed or recorded with or delivered to the appropriate Person; (f) The Borrower shall have delivered to Lenders one or more legal opinions from its counsel, which opinions shall be acceptable to Lenders; (g) All corporate and legal proceedings and all instruments and documents in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in content, form and substance to the Agent and its counsel, and each Lender, and the Agent and the Agent's counsel shall have received any and all further information and documents which the Agent or such counsel may reasonably have requested in connection therewith, such documents where appropriate to be certified by proper corporate or governmental authorities.

Conditions Precedent to Initial Loans. The Each Lender’s obligation of each ------------------------------------- Lender to make its any initial Loan is subject to the conditions precedent that: (a) The that Agent and each Lender shall consent to or shall have received on or before the day of the initial Borrowing the following, each dated on or about the date hereof (except for the documents referred to in clauses (i) and (v))received, in form and substance satisfactory to Agent and each Lender, such documents, and completion of such other matters prior to the Closing Date, as Agent and each Lender may deem necessary or appropriate, including: (a) each of the Agent and (except for the Notes) in sufficient copies for each Lender:Lenders shall have completed a due diligence investigation to its satisfaction; (ib) Copies of original Credit Documents, each duly executed by each Obligor, as applicable; (c) the Certificate of Incorporation, or other organizational document Organic Documents and good standing certificates of each Loan Party, Obligor certified as of a recent date by the Secretary of State (or equivalent agency) of its state such Obligor’s jurisdiction of formation or incorporationorganization, each as of a date no earlier than 30 days prior to the Closing Date; (iid) Copies of UCC financing statements reflecting the BylawsObligors, if anyas debtors, of each and Agent, as a secured party, which are required to ▇▇▇▇▇ ▇ ▇▇▇▇ which secures the Loan Party, certified by the Secretary or an Assistant Secretary of Indebtedness and covering such Loan PartyCollateral as Agent may request; (iii) Copies of resolutions of the Board of Directors or other authorizing documents of each Loan Party, approving the Loan Documents and the Borrowings and the reimbursement obligations under the Letters of Credit issued hereunder; (iv) An incumbency certificate or equivalent document executed by the Secretary or an Assistant Secretary of each Loan Party certifying the names and signatures of the officers of such Loan Party or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder; (v) a good standing certificate for each Loan Party, issued as of a recent date by the Secretary of State of (Ae) the state in which such Loan Party is incorporated or formed and (B) each state in which it owns material assets and conducts material operations. (vi) The Notes issued by the Borrower to the order of each Lender; (vii) This Agreement, including all exhibits and schedules heretoPerfection Certificate, duly executed by the Borrower, the Agent, the Syndication Agent and the LendersObligors; (viiif) A Notice of Revolving Loan, a duly executed by the chief financial officer of Borroweroriginal officer’s certificate for each Obligor; (ixg) The Guarantycertified copies, duly executed dated as of date no earlier than 30 days prior to the Closing Date, of financing statement searches completed by each GuarantorObligor, as the Agent shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Liens permitted by the Credit Documents or have been or, in connection with the initial Loans, will be terminated or released; (x) The Security Agreement, duly executed by the Borrower, and the Subsidiary Pledge and Security Agreement, duly executed by each Guarantor together with (A) certificates representing the Pledged Shares referred to in Schedule II to each of the Security Agreement and the Subsidiary Pledge and Security Agreement, accompanied by undated stock powers executed in blank, and (B) evidence satisfactory to the Agent that all other actions necessary or advisable to perfect and protect the security interest created by the Security Agreement and the Subsidiary Pledge and Security Agreement have been taken, including delivery to the Agent of financing statements (Forms UCC- 1h) duly executed by legal opinions of counsel to the Borrower and each Guarantor in form sufficient for filing in all offices in which Obligors dated as of the Agent or Lenders may consider filing to be appropriate in order to perfect the Lenders' security interestClosing Date; (xii) Certificates as subject to coverage under Section 5.1(q), evidence that the insurance policies required by the Security Credit Documents are in full force and effect, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of the Agent for the benefit of the Lenders; (j) a Request for an Initial Revolving Advance under the Fuels Revolving Line in an amount to fund fees and expenses associated herewith, the payment of certain outstanding taxes owed to Stanislaus County and the reconciliation of certain equity proceeds that were used by the Obligors; (k) a Request for an Initial Revolving Advance under the Carbon Revolving Line in an amount to fund the reconciliation of certain equity proceeds that were used by the Obligors; (l) a copy of (i) the Annual Budget for fiscal years 2022 and 2023 and (ii) a copy of the annual monthly cash flow budget for each month prior to the applicable Maturity Date, for Parent, each Borrower and AEFK, in each case satisfactory to the Agent in its sole discretion; (m) payment of the fees and expenses of the Agent and the Lenders then due as specified in the Fee and Side Letter and in Section 2.13 hereof; (n) background and credit checks on each Obligor and certain of their respective key personnel, satisfactory to the Agent in its sole discretion; (o) no Event of Default (ignoring any cure periods indicated in Section 6.1) shall have occurred and be continuing or result from the execution of this Agreement and the Subsidiary Pledge and Security Agreement, each other Credit Documents or the extension of which shall be endorsed or otherwise amended to include a standard lender's loss payable endorsement and to name any Loans on the Closing Date; (p) the Agent as additional insuredshall have received from the Carbon Borrower a preliminary list of uses of proceeds from the Carbon Revolving Line, including detailed business description, investment rationale, carbon intensity and reduction targets, and expected financial benefit, in form and substance satisfactory to the Agent; (xiiq) The Intellectual Property Security Agreement, duly executed by the Borrower, Agent shall have returned the Original Closing Date Warrant to the Borrowers with explicit instructions for cancellation; and (r) the Agent and the Subsidiary Intellectual Property Security Agreements, duly executed by each Guarantor, each in form sufficient for recording in the United States Patent and Trademark Office and the United States Copyright Office; (xiii) The Fee Letter, duly executed by the Borrower, and Lenders shall have received such other matters documents, instruments and information as the Agent acting on behalf of the Lenders such Person may reasonably request. (b) The Borrower shall have paid to the Agent, for distribution (as appropriate) to the Agent and/or the Lenders, the fees payable as required in Section 2.1 and as specified in the Fee Letter. (c) The Borrower shall have paid to Syndication Agent the fees payable as specified in a separate letter between Borrower and Syndication Agent. (d) The Borrower shall have furnished to the Agent and each Lender audited consolidated financial statements of Borrower for Borrower's fiscal year ended December 31, 1997, prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm acceptable to the Agent; (e) The Borrower shall have executed and delivered all financing statements, notices, and other documents necessary or appropriate to perfect (to the extent such perfection can be effected by such filings) the security interest of Agent in the assets of Borrower in the U.S. covered by the Security Agreement, and such financing statements, notices and other documents shall have been filed or recorded with or delivered to the appropriate Person; (f) The Borrower shall have delivered to Lenders one or more legal opinions from its counsel, which opinions shall be acceptable to Lenders; (g) All corporate and legal proceedings and all instruments and documents in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in content, form and substance to the Agent and its counsel, and each Lender, and the Agent and the Agent's counsel shall have received any and all further information and documents which the Agent or such counsel may reasonably have requested in connection therewith, such documents where appropriate to be certified by proper corporate or governmental authorities.