Common use of Conditions to the Initial Disbursement Clause in Contracts

Conditions to the Initial Disbursement. The obligation of the Lenders to make the Initial Disbursement shall be subject to the fulfillment and satisfaction of all of the following conditions: (a) Agent and the Lenders shall have received executed counterparts of this Agreement and each other Loan Document set forth on the closing checklist attached hereto as Exhibit D; (b) Agent shall have received a duly executed written notice from the Borrower complying with the requirements of Section 2.2(a); (c) all actions required to be taken by the Borrower pursuant to Section 2.10 shall have been taken; (d) (i) the Specified Acquisition Agreement Representations shall be true and correct but only to the extent that the Borrower or its Affiliates have the right (taking into account any applicable cure provisions) to terminate the Borrower’s or its Affiliates’ obligations under the Agreement Date Acquisition Agreement or otherwise decline to close or consummate the Agreement Date Acquisition as a result of a breach (or failure to be accurate, true or correct) of any such representations or warranties; and (ii) the Specified Representations shall be true and correct in all material respects (unless such Specified Representations are already subject to materiality or other qualifier, and in such event, in all respects) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties shall have been true and correct in all material respects (without duplication of any materiality or other qualifier contained therein) as of such earlier date); (e) substantially concurrently with the execution and delivery of the Loan Documents, the Agreement Date Acquisition shall be consummated in accordance with the terms of that certain Purchase and Sale Agreement, dated as of November 28, 2017, by and between the Borrower and The Medicines Company, a Delaware corporation, and the schedules and exhibits thereto, each in the form that was delivered to ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP on November 28, 2017 at 8:26 p.m. (New York time), and all conditions therein shall have been satisfied (without giving effect to any waiver thereof) as of such time, but, in each case, without giving effect to (i) any amendments, modifications or supplements thereof or (ii) waivers or consents (including, for the avoidance of doubt, waivers or consents to deviations of any of the conditions set forth in Section 10.1 or 10.3 of the Purchase and Sale Agreement) thereunder by the Borrower or its Affiliates (but not, for the avoidance of doubt, the Seller and its Affiliates), in the case of each of clauses (i) and (ii) above, that are materially adverse to the interests of Agent or the Lenders and that have not been consented to in writing (such consent not to be unreasonably withheld) by the Agent and the Lenders, it being understood that any change in (A) the purchase price of the Agreement Date Acquisition (other than (1) an increase funded solely by equity of the existing direct and indirect equity holders of the Borrower or (2) a decrease in the purchase price of the Agreement Date Acquisition so long as 100% of such reduction is allocated to reduce (y) first, the Initial Disbursement based on the Pro Rata Share of the Lenders making the Initial Disbursement and (z) then, the Subsequent Disbursement Commitments) and (B) the definition of “Material Adverse Effect”, in each cases, in such Purchase and Sale Agreement shall be deemed materially adverse to the interests of Agent and the Lenders; (f) neither the Borrower nor any of its Subsidiaries shall have any Indebtedness, other than Permitted Indebtedness and all other Indebtedness shall be paid off (and the Suchard Refinancing shall have occurred) pursuant to payoff letters reasonably satisfactory to Agent and the Required Lenders and any Liens relating thereto shall be terminated in a manner reasonably satisfactory to Agent and the Required Lenders; (g) all actions necessary (or reasonably requested by the Agent or the Required Lenders) to establish that Agent (for the benefit of the Secured Parties) will have perfected first priority security interests and Liens in the Collateral under the Loan Documents shall have been taken, it being understood and agreed that to the extent any security interest in any Collateral (other than security interests that may be perfected by (i) the filing of a financing statement under the UCC, (ii) the making of federal intellectual property filings with the United States Patent and Trademark Office and the United States Copyright Office and (iii) the delivery of certificates, if applicable, evidencing the Stock of the Loan Parties (other than the Borrower) and any other Subsidiary of the Borrower) is not or cannot be perfected on the Agreement Date after the Borrower’s use of commercially reasonable efforts to do so, then the perfection of such security interests shall not constitute a condition precedent to the availability of the Initial Disbursement on the Agreement Date, but instead shall be required to be perfected after the Agreement Date pursuant to arrangements and timing to be mutually agreed by the Required Lenders and the Borrower acting reasonably (but not to exceed 60 days after the Agreement Date, unless extended by the Required Lenders in its sole discretion); (h) the payment by the Borrower of the fees required to be paid pursuant to Section 2.9 to the Agent and the Lenders and all other fees required to be paid on the Agreement Date pursuant to this Agreement and the other Loan Documents and all costs and expenses required to be paid on the Agreement Date (including pursuant to Section 6.3) pursuant to this Agreement and the other Loan Documents, in the case of costs and expenses, to the extent invoiced at least two (2) Business Days prior to the Agreement Date, shall have been paid (which amounts, at the sole option of the Lenders, may be offset against the proceeds of the Initial Disbursement); (i) Agent and the Lenders shall have received at least five (5) Business Days prior to the Agreement Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, that has been reasonably requested by Agent or any Lender at least ten (10) days in advance of the Agreement Date, including a duly executed IRS Form W-9 (or such other applicable tax form) of the Borrower; (j) the conditions set forth in Section 2.2(a) have been satisfied and the terms set forth in Section 2.2 (a) have been completely complied with; (k) the shareholders of the Borrower shall have approved the issuance of all of the shares of Common Stock being issued in the Agreement Date Acquisition and to the Lenders (including all of the shares underlying the Warrants) and any other Person or entity providing equity financing in connection with the Agreement Date Acquisition for purposes of satisfying the Principal Market listing requirement; (l) the Borrower shall be in compliance with all of the covenants set forth in Section 3 of the Commitment Letter, in all material respects (unless such covenants are already subject to materiality, and in such event, in all respects); and (m) since the date of the Agreement Date Acquisition Agreement, no change, effect, development, circumstance, condition or occurrence shall have occurred which has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (as defined in the Agreement Date Acquisition Agreement as in effect on November 28, 2017).

Conditions to the Initial Disbursement. The In addition to the fulfillment and satisfaction (or waiver by the Required Lenders) of each condition set forth in Section 4.4, the obligation of the Lenders to make the Initial Disbursement shall be subject to the fulfillment and satisfaction (or waiver by the Required Lenders) of all of the following conditions: (a) Agent and the Lenders shall have received executed counterparts of this Agreement and each other Loan Document set forth on the closing checklist attached hereto as Exhibit D; (b) Agent shall have received a duly executed written notice from the Borrower complying with the requirements of Section 2.2(a); (b) the proceeds of the Initial Disbursement shall be directed and requested for use in accordance with Section 2.1; (c) all actions required in the reasonable judgment of the Required Lenders, since December 31, 2017, there has been no Material Adverse Effect or any event or circumstance which would reasonably be expected, individually or in the aggregate, to be taken by the Borrower pursuant to Section 2.10 shall have been takenresult in a Material Adverse Effect; (d) no Default or Event of Default shall have occurred, or would be reasonably expected to occur, or would result from the Initial Disbursement or the use of the proceeds therefrom; (ie) no Default or Event of Default (each as defined in the Specified Acquisition Agreement Representations Senior Facility Agreement) shall have occurred, or would be reasonably expected to occur, or would result from the Initial Disbursement or the use of the proceeds therefrom; (f) at the time of and after giving effect to the Initial Disbursement and the use of proceeds thereof, each representation and warranty by any Loan Party or any of its Subsidiaries contained herein or in any other Loan Document shall be true true, correct and correct but only to the extent that the Borrower or its Affiliates have the right (taking into account any applicable cure provisions) to terminate the Borrower’s or its Affiliates’ obligations under the Agreement Date Acquisition Agreement or otherwise decline to close or consummate the Agreement Date Acquisition as a result of a breach (or failure to be accurate, true or correct) of any such representations or warranties; and (ii) the Specified Representations shall be true and correct complete in all material respects (unless such Specified Representations are already subject to without duplication of any materiality or other qualifier, and in such event, in all respectsqualifier contained therein) as of such datedate and time, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties shall have been true true, correct and correct complete in all material respects (without duplication of any materiality or other qualifier contained therein) as of such earlier date); (eg) substantially concurrently with the execution and delivery Lenders shall have received original Notes aggregating the amount of the Loan DocumentsInitial Disbursement, the Agreement Date Acquisition shall be consummated in accordance with the terms of that certain Purchase and Sale Agreement, dated as of November 28, 2017, by and between the Borrower and The Medicines Company, a Delaware corporation, and the schedules and exhibits thereto, each in the form that was delivered to ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP on November 28, 2017 at 8:26 p.m. if requested; (New York time), and all conditions therein shall have been satisfied (without giving effect to any waiver thereofh) as of such time, but, in each case, without giving effect to (i) any amendments, modifications or supplements thereof or (ii) waivers or consents (including, for the avoidance of doubt, waivers or consents to deviations of any of the conditions set forth in Section 10.1 or 10.3 of the Purchase and Sale Agreement2.2(a) thereunder by the Borrower or its Affiliates (but not, for the avoidance of doubt, the Seller and its Affiliates), in the case of each of clauses (i) and (ii) above, that are materially adverse to the interests of Agent or the Lenders and that have not been consented to in writing (such consent not to be unreasonably withheld) by the Agent satisfied and the Lenders, it being understood that any change terms set forth in (ASection 2.2(a) the purchase price of the Agreement Date Acquisition (other than (1) an increase funded solely by equity of the existing direct and indirect equity holders of the Borrower or (2) a decrease in the purchase price of the Agreement Date Acquisition so long as 100% of such reduction is allocated to reduce (y) first, the Initial Disbursement based on the Pro Rata Share of the Lenders making the Initial Disbursement and (z) then, the Subsequent Disbursement Commitments) and (B) the definition of “Material Adverse Effect”, in each cases, in such Purchase and Sale Agreement shall be deemed materially adverse to the interests of Agent and the Lendershave been completely complied with; (f) neither the Borrower nor any of its Subsidiaries shall have any Indebtedness, other than Permitted Indebtedness and all other Indebtedness shall be paid off (and the Suchard Refinancing shall have occurred) pursuant to payoff letters reasonably satisfactory to Agent and the Required Lenders and any Liens relating thereto shall be terminated in a manner reasonably satisfactory to Agent and the Required Lenders; (g) all actions necessary (or reasonably requested by the Agent or the Required Lenders) to establish that Agent (for the benefit of the Secured Parties) will have perfected first priority security interests and Liens in the Collateral under the Loan Documents shall have been taken, it being understood and agreed that to the extent any security interest in any Collateral (other than security interests that may be perfected by (i) the filing of a financing statement under the UCC, (ii) the making of federal intellectual property filings with the United States Patent and Trademark Office and the United States Copyright Office and (iii) the delivery of certificates, if applicable, evidencing the Stock of the Loan Parties (other than the Borrower) and any other Subsidiary of the Borrower) is not or cannot be perfected on the Agreement Date after the Borrower’s use of commercially reasonable efforts to do so, then the perfection of such security interests shall not constitute a condition precedent to the availability of the Initial Disbursement on the Agreement Date, but instead shall be required to be perfected after the Agreement Date pursuant to arrangements and timing to be mutually agreed by the Required Lenders and the Borrower acting reasonably (but not to exceed 60 days after the Agreement Date, unless extended by the Required Lenders in its sole discretion); (h) the payment by the Borrower of the fees required to be paid pursuant to Section 2.9 to the Agent and the Lenders and all other fees required to be paid on the Agreement such Disbursement Date pursuant to this Agreement and the other Loan Documents and all costs and expenses required to be paid on the Agreement such Disbursement Date (including pursuant to Section 6.3) pursuant to this Agreement and the other Loan Documents, in the case of costs and expenses, to the extent invoiced at least two (2) Business Days prior to the Agreement Date, shall have been paid such date (which amounts, at the sole option of the Lenders, may be offset against the proceeds of the Initial Disbursement); (ij) Agent the Common Stock shall continue to be listed on an Eligible Market; (k) the Board of Directors shall have approved a go-forward operating plan, taking into account the funding of the Loans hereunder, that shall not reasonably be expected to result in a Default or Event of Default (each as defined in the Senior Facility Agreement) or a Default or Event of Default hereunder; (l) the Stockholder Approval shall have been obtained and the Lenders Borrower shall have received at least five (5adopted and filed the applicable amendment(s) Business Days prior to the Agreement Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, that has been reasonably requested by Agent or any Lender at least ten (10) days in advance Certificate of Incorporation of the Agreement DateBorrower and a Certificate of Designations with respect to the Preferred Stock with the Secretary of State of the State of Delaware in substantially the applicable form(s) attached hereto as Exhibits F-1 (the “Reverse Split Amendment”) and/or F-2 (the “Authorized Shares Amendment” and, including a duly executed IRS Form W-9 together with the Reverse Split Amendment, the “Certificate Amendment”) and Exhibit G (or such other the “Certificate of Designations”), respectively, and the applicable tax formCertificate Amendment and the Certificate of Designations shall each be in full force and effect; (m) the Common Stock into which the Conversion Shares are convertible (based on the then applicable Conversion Rate) shall have been approved for listing on an Eligible Market, subject to official notice of issuance; (n) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have been appointed chief executive officer of the Borrower; (jo) the conditions set forth in Section 2.2(a) have been satisfied and the terms set forth in Section 2.2 (a) have been completely complied with; (k) the shareholders of the Borrower Lenders shall have approved the issuance received a favorable written opinion of all of the shares of Common Stock being issued in the Agreement Date Acquisition and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Lenders (including all of Loan Parties, addressed to the shares underlying Lenders, dated the Warrants) and any other Person or entity providing equity financing in connection with the Agreement Date Acquisition for purposes of satisfying the Principal Market listing requirement; (l) the Borrower shall be in compliance with all of the covenants set forth in Section 3 of the Commitment LetterAmendment Date, in all material respects (unless such covenants are already subject form and substance reasonably satisfactory to materiality, and in such event, in all respects)the Required Lenders; and (mp) since the date Lenders shall have received a certificate executed by an Authorized Officer of the Agreement Date Acquisition AgreementBorrower, no changein form and substance reasonably satisfactory to the Required Lenders, effect, development, circumstance, condition or occurrence shall certifying that the conditions in this Section 4.2 have occurred which has had or would reasonably be expected to have, individually or been satisfied in the aggregate, a Material Adverse Effect (as defined in the Agreement Date Acquisition Agreement as in effect on November 28, 2017)all respects.

Conditions to the Initial Disbursement. The In addition to the fulfillment and satisfaction of each condition set forth above in Section 4.1, the obligation of the Lenders to make the Initial Disbursement shall be subject to the fulfillment and satisfaction (or waiver by the Required Lenders) of all of the following conditions: (a) Agent and the Lenders shall have received executed counterparts of this Agreement and each other Loan Document set forth on the closing checklist attached hereto as Exhibit D; (b) Agent shall have received a duly executed written notice from the Borrower complying with the requirements of Section 2.2(a); (b) the proceeds of the Initial Disbursement shall be directed and requested for use in accordance with Section 2.1; (c) all actions required in the reasonable judgment of the Required Lenders, since December 31, 2017, there has been no Material Adverse Effect or any event or circumstance which would reasonably be expected, individually or in the aggregate, to be taken by the Borrower pursuant to Section 2.10 shall have been takenresult in a Material Adverse Effect; (d) no Default or Event of Default shall have occurred, or would be reasonably expected to occur, or would result from the Initial Disbursement or the use of the proceeds therefrom; (ie) no Default or Event of Default (each as defined in the Specified Acquisition Agreement Representations Senior Facility Agreement) shall have occurred, or would be reasonably expected to occur, or would result from the Initial Disbursement or the use of the proceeds therefrom; (f) at the time of and after giving effect to the Initial Disbursement and the use of proceeds thereof, each representation and warranty by any Loan Party or any of its Subsidiaries contained herein or in any other Loan Document shall be true true, correct and correct but only to the extent that the Borrower or its Affiliates have the right (taking into account any applicable cure provisions) to terminate the Borrower’s or its Affiliates’ obligations under the Agreement Date Acquisition Agreement or otherwise decline to close or consummate the Agreement Date Acquisition as a result of a breach (or failure to be accurate, true or correct) of any such representations or warranties; and (ii) the Specified Representations shall be true and correct complete in all material respects (unless such Specified Representations are already subject to without duplication of any materiality or other qualifier, and in such event, in all respectsqualifier contained therein) as of such datedate and time, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties shall have been true true, correct and correct complete in all material respects (without duplication of any materiality or other qualifier contained therein) as of such earlier date); (eg) substantially concurrently with the execution and delivery Lenders shall have received original Notes aggregating the amount of the Loan DocumentsInitial Disbursement, the Agreement Date Acquisition shall be consummated in accordance with the terms of that certain Purchase and Sale Agreement, dated as of November 28, 2017, by and between the Borrower and The Medicines Company, a Delaware corporation, and the schedules and exhibits thereto, each in the form that was delivered to ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP on November 28, 2017 at 8:26 p.m. if requested; (New York time), and all conditions therein shall have been satisfied (without giving effect to any waiver thereofh) as of such time, but, in each case, without giving effect to (i) any amendments, modifications or supplements thereof or (ii) waivers or consents (including, for the avoidance of doubt, waivers or consents to deviations of any of the conditions set forth in Section 10.1 or 10.3 of the Purchase and Sale Agreement2.2(a) thereunder by the Borrower or its Affiliates (but not, for the avoidance of doubt, the Seller and its Affiliates), in the case of each of clauses (i) and (ii) above, that are materially adverse to the interests of Agent or the Lenders and that have not been consented to in writing (such consent not to be unreasonably withheld) by the Agent satisfied and the Lenders, it being understood that any change terms set forth in (ASection 2.2(a) the purchase price of the Agreement Date Acquisition (other than (1) an increase funded solely by equity of the existing direct and indirect equity holders of the Borrower or (2) a decrease in the purchase price of the Agreement Date Acquisition so long as 100% of such reduction is allocated to reduce (y) first, the Initial Disbursement based on the Pro Rata Share of the Lenders making the Initial Disbursement and (z) then, the Subsequent Disbursement Commitments) and (B) the definition of “Material Adverse Effect”, in each cases, in such Purchase and Sale Agreement shall be deemed materially adverse to the interests of Agent and the Lendershave been completely complied with; (f) neither the Borrower nor any of its Subsidiaries shall have any Indebtedness, other than Permitted Indebtedness and all other Indebtedness shall be paid off (and the Suchard Refinancing shall have occurred) pursuant to payoff letters reasonably satisfactory to Agent and the Required Lenders and any Liens relating thereto shall be terminated in a manner reasonably satisfactory to Agent and the Required Lenders; (g) all actions necessary (or reasonably requested by the Agent or the Required Lenders) to establish that Agent (for the benefit of the Secured Parties) will have perfected first priority security interests and Liens in the Collateral under the Loan Documents shall have been taken, it being understood and agreed that to the extent any security interest in any Collateral (other than security interests that may be perfected by (i) the filing of a financing statement under the UCC, (ii) the making of federal intellectual property filings with the United States Patent and Trademark Office and the United States Copyright Office and (iii) the delivery of certificates, if applicable, evidencing the Stock of the Loan Parties (other than the Borrower) and any other Subsidiary of the Borrower) is not or cannot be perfected on the Agreement Date after the Borrower’s use of commercially reasonable efforts to do so, then the perfection of such security interests shall not constitute a condition precedent to the availability of the Initial Disbursement on the Agreement Date, but instead shall be required to be perfected after the Agreement Date pursuant to arrangements and timing to be mutually agreed by the Required Lenders and the Borrower acting reasonably (but not to exceed 60 days after the Agreement Date, unless extended by the Required Lenders in its sole discretion); (h) the payment by the Borrower of the fees required to be paid pursuant to Section 2.9 to the Agent and the Lenders and all other fees required to be paid on the Agreement such Disbursement Date pursuant to this Agreement and the other Loan Documents and all costs and expenses required to be paid on the Agreement such Disbursement Date (including pursuant to Section 6.3) pursuant to this Agreement and the other Loan Documents, in the case of costs and expenses, to the extent invoiced at least two (2) Business Days prior to the Agreement Date, shall have been paid such date (which amounts, at the sole option of the Lenders, may be offset against the proceeds of the Initial Disbursement); (ij) Agent the Common Stock shall continue to be listed on an Eligible Market; (k) the Board of Directors shall have approved a go-forward operating plan, taking into account the funding of the Loans hereunder, that shall not reasonably be expected to result in a Default or Event of Default (each as defined in the Senior Facility Agreement) or a Default or Event of Default hereunder; (l) the Stockholder Approval shall have been obtained and the Lenders Borrower shall have received at least five (5adopted and filed the applicable amendment(s) Business Days prior to the Agreement Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, that has been reasonably requested by Agent or any Lender at least ten (10) days in advance Certificate of Incorporation of the Agreement DateBorrower and a Certificate of Designations with respect to the Preferred Stock with the Secretary of State of the State of Delaware in substantially the applicable form(s) attached hereto as Exhibits F-1 (the “Reverse Split Amendment”) and/or F-2 (the “Authorized Shares Amendment” and, including a duly executed IRS Form W-9 together with the Reverse Split Amendment, the “Certificate Amendment”) and Exhibit G (or such other the “Certificate of Designations”), respectively, and the applicable tax formCertificate Amendment and the Certificate of Designations shall each be in full force and effect; (m) the Common Stock into which the Conversion Shares are convertible (based on the then applicable Conversion Rate) shall have been approved for listing on an Eligible Market, subject to official notice of issuance; (n) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have been appointed chief executive officer of the Borrower; (jo) the conditions set forth Lenders shall have received a duly executed copy of an amendment to, or amendment and restatement of, the Senior Facility Agreement, which shall be in Section 2.2(a) have been satisfied form and substance reasonably satisfactory to the terms set forth in Section 2.2 Required Lenders (a) have been completely complied withthe “Senior Facility Amendment”); (kp) the shareholders of the Borrower Lenders shall have approved the issuance received a favorable written opinion of all of the shares of Common Stock being issued in the Agreement Date Acquisition and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Lenders (including all of Loan Parties, addressed to the shares underlying Lenders, dated the Warrants) and any other Person or entity providing equity financing in connection with the Agreement Date Acquisition for purposes of satisfying the Principal Market listing requirement; (l) the Borrower shall be in compliance with all of the covenants set forth in Section 3 of the Commitment LetterInitial Disbursement Date, in all material respects (unless such covenants are already subject form and substance reasonably satisfactory to materiality, and in such event, in all respects)the Required Lenders; and (mq) since the date Lenders shall have received a certificate executed by an Authorized Officer of the Agreement Date Acquisition AgreementBorrower, no changein form and substance reasonably satisfactory to the Required Lenders, effect, development, circumstance, condition or occurrence shall certifying that the conditions in this Section 4.2 have occurred which has had or would reasonably be expected to have, individually or been satisfied in the aggregate, a Material Adverse Effect (as defined in the Agreement Date Acquisition Agreement as in effect on November 28, 2017)all respects.